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 ...