King William of England adopted feudalism, a system of government which was already established in Western Europe. Rights, duties and obligations were set down. Predictably, the monarch was at the top of this system owning all the land. His lords and barons were assigned large sections or “manors” thereby buying their allegience and military service as his vassals providing administrative duties. The freemen and serfs worked the lord’s lands and their own. Shares of the produce was given to the lord and the church. This feudalism is the basis for all our modern property laws.
The lord of each manor was the sole judge in trials involving any of his vassals. Inequity resulted from this system of justice whereas one lord mercifully sentenced restitution for theft but a different lord sentenced death. The king saw that this inequity was rather problematic and responded by appointing a number of judges who travelled the country-side and held hearings or “assizes”. Regular meetings in London enabled these judges to share experiences. Bit by bit, common agreement slowly arose from these discussions. By the 12th and 13th Centuries there was more consistency of ruling –the roots of English common law, common to all people throughout England. Only when no custom existed did judges make their own decisions. We can see a sense of status quo here and the need for legislative powers to bring forward new law to better direct a changing society. [In other words, we need good and honourable politicians to be elected to facilitate this process or judges will run our countries. So get politically involved–it does matter.]
This common-law system of standing by earlier decisions (Latin: stare decisis) was introduced to North America by the colonists who first settled here. Judges from the highest courts in many Canadian provinces still travel to the provincial counties. There they hold regional assizes to deal with the most serioius criminal and civil offences.

Precedent was established as case after case ensued and was later referred to as a guide and reference point. Similar cases were treated alike, establishing a standard and common system of judging offences throughout the country. At first, these case decisions existed only in the judges memories and were known as “unwritten law”. The king as the fountainhead of justice whom people appealed to when they felt common law had failed them. As occasion demanded the king had the authority to overrule judge’s decisions when he felt it was necessary to do so.

Old precedents can be a problem when circumstances change. Common law managing horse-drawn carriages cannot adequately rule on automobiles. But precedent has its uses:

  • It introduces a degree of certainty into the law. A person or his or her lawyer going before the courts can examine previously similar cases and the arguments that were used. The objective and expectation is to reach a similar result.
  • It causes the courts to act impartially rather than favour any of the parties in an action. Lawyers present reports of earlier cases to persuade judges to reach similar decisions arrived at in those cases.
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