Common Law

Common law (which is also referred to as judge-made law) addresses the following legal situations, among others:

• deciding how to deal with a certain legal issue based on evidence (if an act or regulation does not deal with a certain legal issue)
• interpreting the law (if a law is unclear and requires interpretation)
• deciding if an act or parts of certain act are constitutional

In making their decisions, judges must review related decisions made by earlier judges (known as precedents). Judges must follow the decisions made by earlier judges in higher courts. For example, judges in the Alberta Court of Justice must follow any decisions made by the Supreme Court of Canada.

Governments must also follow the decisions made by the Supreme Court of Canada. If a lower court makes a decision that a government is not satisfied with, the government may be able to appeal the decision to the Supreme Court.

It is also important to know that “common law” has other meanings depending on other contexts. For example, “common law” also means:

• a system of law in the provinces in Canada (except for Quebec, which has a “civil law” system)
• a type of voluntary union or relationship between two persons that is not a legal marriage, but is valid at common law

For the purposes of this course, the use of the term “common law” refers to the interpretation of legislation by the courts (or “judge-made law”).