G'day Phil,
On Mar 27, 2006, at 5:26 PM, Mark Gallagher wrote:
G'day Phil,
It would depend--the American legal system is
based on English common
law, but American courts rarely, if ever, take into account English
court precedents after the colonial period. Commonwealth countries
may still take into account contemporary English precedents, however.
AIUI, that's due to bog-standard insecurity --- "we can't let those
dirty forners tell us what to do!"
The Australian High Court recently (well, fifteen years ago ...) looked
to Zimbabwe and Canada (IIRC) for guidance. I believe the argument goes
something like: "our law was the same up until X date, therefore ---
barring decisions that drastically change this area of law --- we're
likely to be expected to come to similar conclusions".
The United States went to war twice to ensure that the English weren't
in charge of our laws. Other former colonies don't seem to appreciate
that :)
Heh, fair point.
(In 2001, the Govt ran an ad campaign: "Our nation was started with a
treaty, *not* a war", or words to that effect, to say that while
Federation may not have been as glamarous as the American Revolution, it
didn't cost as many lives, and also everyone got free "I attended the
Constitutional Convention of 189mumble" souvenir mugs. I've often
wondered how Americans would feel about this campaign.)
Do the Commonwealth nations grant to English rulings
stare decisis
standing as court precedents, or do they simply look to them for guidance?
I only know about Australian law (and even then, it was an elective
subject for just four semesters :)), but I assume the other Cth
countries follow similar procedures.
Precedent theoretically applies up until Federation, colony court
decisions notwithstanding. A case decided after Federation would not be
binding on Australian courts, however, since our courts share a common
background with, say, Scottish courts, their reasoning can be used for
guidance. For example, /Donoghue v. Stevenson/, the landmark case that
established the tort of negligence, was introduced to Australia in the
case /mumble/, and didn't just apply off its own bat. Other Cth
countries had similar cases for introducing negligence, where /D&S/ was
referred to, but taken up because it was a good idea and something that
followed from our shared legal system, not because it was binding.
I don't know how America got negligence; all my lecturer said was
"America did its own crazy thing", so ...
--
Mark Gallagher
0439 704 975
"What? I can't hear you, I've got a banana on my head!"
- Danger Mouse
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