Philip Sales, ‘The common law: context and method’

Introduction
In this article I attempt to marry up some theoretical perspectives on the common law and a judicial point of view about how it operates. What does a common law judge do when deciding cases? How does he or she identify a legal rule or principle from a mass of materials – in particular previous decided cases – then articulate the rule for him or herself, then apply the rule to decide the case? In the first part, I address the institutional context in which the common law operates. In the second, I comment on the common law in its pure form, in the sense of law developed by judges by drawing on previous court decisions. In the third, I show how the common law method of reasoning also infuses the courts’ approach to statutory interpretation …

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Sir Philip Sales, ‘The common law: context and method’ (2019) 135 Law Quarterly Review 47.

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