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Fundamentals of the Common Law is a foundational subject in the Melbourne Law Masters (MLM), which is compulsory for graduates in disciplines other than law and for law graduates from countries with a non-common law system. It provides students with an opportunity to acquire the foundational legal skills necessary for studying and working in a common law system, such as that in Australia.
The common law forms one of the two principal systems of Western law that, through colonisation, have spread throughout the world. Common law systems have a distinctive approach to understanding the sources of law, the role of law-making institutions, and processes for resolving disputes. These characteristics of the common law system have had a profound effect on the development not only of the societies in the countries in which it applied, but also on international law and practice.
The aim of this subject is to acquire basic foundational legal skills that will assist you with other subjects in the MLM program. The subject teaches students how to read, use and interpret reported cases and legislation. The subject explains the sources of law, what influences them, and how they influence the development of the common law. These aims are given in context of some contemporary debates on common law reasoning by assessing the role of the High Court of Australia. The subject focuses on developing skills in analysis and legal writing, the tools of the common lawyer
Principal topics include:
- How to read and analyse a case
- The concept and use of precedent
- Evolution of a common law principle
- Common law issues: judicial activism, separation of powers
- The role of the High Court and an overview of the Constitution
- The relationship between the Constitution, case law and statute law
- Influences of other sources of law on the common law
- How to read and analyse statutes
- Approaches to statutory interpretation
- Legal writing skills and expectations in the MLM program.
Intended learning outcomes
A student who has successfully completed this subject will be able to:
- Read a case and identify the relevant facts, the precedential value of the decision, the legal concepts at issue and the legal principle determined in that case
- Explain the sources of law and law-making power in Australia, including the relationship between the Constitution, case law and statute law
- Identify and assess the influence of other sources of law on the common law and on the evolution of common law principles
- Describe different approaches to statutory interpretation and apply these to read and analyse statutes
- Explain the difference between a primary source and a secondary source of law and evaluate the quality of that source for use in legal writing
- Construct a written legal argument in response to a topic, utilising appropriate primary and secondary sources as support for arguments advanced, with appropriate referencing using the Australian Guide to Legal Citation (AGLC).
Last updated: 18 December 2020