How Common Law Works? A Principal Explanation of the Operation of Common Law

         Imagine, if you will indulge me for a moment, that you are the monarchical ruler of a kingdom inherited from your deceased uncle, for example. Within the boundaries of your kingdom lived millions of people, dependent upon your wise decisions to go about with their daily lives, and your every decision will affect the livelihoods of these people. How will you go about ruling your kingdom, and to make sure that the country is able to function properly and efficiently? 

        That is the question faced by one William the Conqueror back in the 11th century, where he succeeded in capturing the vast land that we come to know as England now, well except for the fact that he did not inherit the land, he captured it via brute force.

            What he then did properly formed a part of the law system that we now know and obey. It is important to note that a properly functioning law system is important to any country and any kingdom, simply because of the fact that law guarantees peace and harmony, and peace and harmony allows knowledge and technology to advance, thus improving livelihoods and the quality of lives of the people. In short, law enabled countries to prosper.

            So what exactly did he do? Well, for starters, he elected personnel that he then denoted as his judges, and sent them all over the land that he conquered. These judges collected, compiled and stored the judgments and decisions taken by all the courts system that existed back then. Important excerpts of these judgments were religiously followed, and thus began the reign of one of the law systems known as the common law. I say “one of the law systems” because common law is merely one face of the law. Of course, undeniably there exist other facets of the law: the federal constitution, the various Acts as enacted by the Parliament, certain customary practices, even writings of judicial academicians affect the law with varying degrees of influence. Needless to say, the common law is not the only avenue for behavioral policing.

            But I chose to focus on the topic of common law today because it is the most exciting region of the law. Common law is the facet of law which is allowed to evolve and adapt to meet with the changing needs and demands of the society. Because at the end of the day, we must remember the primary objective of the law, and that is to serve the community and the public at large. If the law failed to adapt to the changing societal views, can it still properly be said to serve the society?

            So then, how exactly does common law operate in the complexities of behavioral policing in general? The previous paragraph may have eluded the answer, i.e.: judges will follow previous decisions, as they cumulate and collect over the years. The next relevant question will be: which part of the decision that they follow? Of course it is impossible to follow the entirety of the judgment. The recent High Court case of PP v Dato Sri’ Najib Razak itself is a hefty 530+ pages long. So how does the whole system work?

            Here comes the introduction of the Latin term: stare decisis. The law system and its associated stakeholders (lawyers, judges and academicians alike) loved their Latin terms. Short for stare decisis et non quieta movere, which loosely translates to mean to “stand by decisions and not disturb settled matters”, stare decisis is a legal doctrine which forms the backbone of common law. Contained within the doctrine of stare decisis are two other Latin jargons: ratio decidendi and obiter dicta respectively. These then formed the operational principles of the doctrine of stare decisis.

            Ratio decidendi can be taken to mean the “reason for deciding”. The ratio decidendi are the important excerpts within the entire judgment that will then bind the subsequent court’s decisions. These excerpts are known as the judicial precedents which are binding upon courts. 

An important example of ratio decidendi is the landmark case of Obergefell v Hodges in the United States of America, where the US Supreme Court essentially legalized same-sex marriages by declaring that all state bans on same-sex marriage to be illegal. Another US jurisdictional court in the present day cannot then declare that any state ban on same-sex marriage to be legal, as this would go contrary to the judgment as was decided in Obergefell v Hodges.

            Obiter dicta can be likened to the neglected brother of ratio decidendi, where it translates to mean “things said by the way”. Obiter dicta is merely illustrative in nature, and will not form part of the judicial precedents. They are at best persuasive, used more often than not to link up the judgments by raising hypothetical circumstances.

            If you’ve got keen objective observation, you would have realized one thing: how can the principle of ratio decidendi evolve and adapt to the changing needs of societal views? You would have a valid point, considering the fact that stare decisis and ratio decidendi both require the judges and the law to conform to a previous decision.

            The House of Lords (the then highest court in England, now known as the Supreme Court of the United Kingdom) contemplated the same issue in 1966. The panel of judges presiding the House of Lords then came up with a solution: the Practice Statement 1966, which operates to allow the judges to ‘depart’ from previous judgments. The judges recorded a heavy tone of reservation, stating that subsequent judges are “to depart from a previous decision when it appears right to do so”.

            On paper, it would seem abstract and vague, as the notion for departing from a previously

decided case rested upon the letters making up the phrase “when it appears right to do so”. So when, then, does it appear right to do so? Every time I make such an explanation, I always refer to the decisions in R v Jackson (1891) and R v R (1991). The decisions may be 100 years apart, seeing as R v Jackson was decided in 1891 while R v R was decided in 1991, but that’s where the differences stopped. Both cases concerned the idea of the husband raping the wife, but where a modest community in 1891 likely failed to grasp the idea of a husband raping the wife, the society in 1991 is ready to remove this immunity enjoyed by all males in the household. Recognizing this shift in mentality of the society at large, the Court of Appeal in the now infamous case of R v R removed the blanket immunity enjoyed by all males in the household from being able to be convicted of the crime of raping their wifes. Such is the power and influence of the Practice Statement 1966, wielded by the judges as though it is a deadly sword.

            To me, stare decisis and the Practice Statement 1966 represents the right and left hand of common law. They form two powerful tools, and when used together properly, they will be able to erect justice where either one of the parties are injured through the fault of another. That is the marvel of common law! However, the ideal world isn’t always as straightforward as it seems.

            In truth, the law, and specifically the common law, isn’t always about erecting justice. You may be the injured party, at no fault of your own; but the law may not always elect to protect you. This is because there is another, more important notion at play: the certainty that the law must provide. The law cannot say murder is a criminal offense punishable by death in one case, but use “self-defence” to justify another person killing someone else. There must be a fine balance between the two conflicting notions of certainty versus justice. 

        This is why, if you noticed, in front of the many court buildings around the world (Brazil, UK, Canada, Germany, Japan, the US, Belgium, and many other courts with the common law system) there stood a statue of a blindfolded female, holding a balancing scale. This statue represented the Lady Justice, Iustitia. The blindfold represents the fact that law must be impartial to whoever who stood before the judicial system, and must treat everyone equally. The balancing scale is intended to balance the opposing notions of certainty versus justice.

            Throughout the trying times of me studying law, I am constantly amazed by the beauty that the system of law brings, the concept of behavioral policing achieved by a vague set of rules dictated by the ambiguity of words, and yet the religious followings that the law has successfully won over. My intention of penning down this article is simple: to dispel any myths that the public may have with regards to the judicial system as a whole, and to allow more and more individuals to discover the beautiful working principles of the law.