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Episode 12 - What is "The Common Law"?
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We keep hearing about "the common law", but what exactly is it? In this episode, we look at three separate meanings.
First, the common law describes a whole legal system, such as Australia, England, the United States and Canada. This contrasts those jurisdictions with civil law, religious law and customary law systems. In practice, there are many countries which are hybrids of two or more systems.
Second, the common law is in contrast to something called Equity. This is also law built up from cases but has a different internal logic or morality. So, in common law systems (meaning no 1) we have both the common law (meaning no 2) and Equity (which is the focus of the next episode.
Third, the common law is in contrast to statute law made by parliaments. Where a constitutionally valid statute conflicts with case law, the statute prevails.
There are arguments either way about the benefits of common law systems over civil law systems. It is also possible that technologies such as artificial intelligence and expert reasoning systems will pose a challenge to both, and that a new approach to law will emerge based on detailed predictions of the consequences of favouring one rule against an alternative rule.
Technology may yet challenge our notions of Justice.
For more information about your hosts and the Law in Context podcast series visit our website at https://lawincontext.com.au
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