Common law is a body of unwritten laws based on legal precedents established by the courts. Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law.
The term ‘common law’ has been used in three different senses, namely:
- The law applicable to all people of a given society regardless of race, tribe and sex.
- As part of a classification of legal systems which have the influence of the English common law as distinct from those which have been termed civil law systems with a Roman law basis.
- As that portion of the law which is not derived from legislation and emanates from a collection of principles made by judges in the course of resolving issues brought before the courts.
The third sense is the most appropriate starting point to an understanding of the ‘common law’ as a source of law. It is important to distinguish between English law and Zimbabwean and South African law in this regard. Under English law, the ‘common law’ is accurately described by the third sense above. Under Zimbabwean and South African law, the common law is made up of two components of non-statutory law, namely:
- a collection of rules and principles made by judges in previous cases, and
- rules and principles contained in that portion of the body of law called ‘Roman Dutch law’ that is not reflected in any previous court decision.
This understanding of the term ‘common law’ under our law will be clear following an explanation of the nature of Roman Dutch law. Under English law, it is accurate to refer to the common law as judgemade law. Under Zimbabwean law, only a portion of the common law is necessarily judge-made. Another expression commonly encountered in this context is judicial precedent. This expression is synonymous with judge-made law, except that it may be used where the expression ‘judgemade law’ would not apply. This one respect is in the area of statutory interpretation. When a court ascribes a meaning to a given provision of an enactment, that meaning may bind future courts. This situation is covered by the expression ‘judicial precedent’ but it cannot be described as ‘judge-made law’.
Although the expressions ‘judge-made law’ and ‘judicial precedent’ are synonymous (except for the one instance referred to above), in English law the common law is almost exclusively based on judicial precedent. Historically, judges in England decided the first law cases by applying general principles of justice, common sense and morality. Gradually, they began to follow their previous decisions under the doctrine of stare decisis (to stand by the decision). Over time, the body of law founded on previous decisions became sufficiently broad in its scope to justify the rule that all rulings had to be based on previous decisions. This body of law is what is called the ‘common law’ in the English legal system. In an exceptional case, there may be no relevant previous case. In such a case, a court cannot say: ‘There is no law in point and therefore the dispute cannot be resolved’. Rather, it must establish the common law by applying what may be termed fundamental principles of justice and fairness.
In countries that were colonized, including those in Africa, the colonial power imposed a Western legal system. As a rule, the imposed legal system required the colony to adopt some specified foreign laws as at the time of the imposition. The ‘common law’ of a colony was therefore made up of two components:
- the principles of law contained in the foreign law as at the time of imposition, and
- law derived from judicial precedent developed after the date of imposition.
This was and is the situation in Zimbabwe. Section 89 of the Constitution of Zimbabwe states: Subject to the provisions of any law for the time being in force in Zimbabwe relating to the application of African Customary Law, the law to be administered by the Supreme Court, the High Court and by any courts in Zimbabwe subordinate to the High Court shall be the law in force in the Colony of the Cape of Good Hope on 10th June, 1891, as modified by subsequent legislation having in Zimbabwe the force of law.
Understanding Common Law
A precedent, known as stare decisis, meaning "to stand by things decided", is a history of judicial decisions which form the basis of evaluation for future cases. Common law, also known as case law, relies on detailed records of similar situations and statutes because there is no official legal code that can apply to a case at hand. The judge presiding over a case determines which precedents apply to that particular case. The example set by higher courts is binding on cases tried in lower courts.
- Lovemore Madhuku, , Library, Published: 15 March, 2010, Accessed: 29 September, 2020