 |
|
|
|
|
|
|
|
 |
|
||||||
|
|||||||
you are here: > Self > 22. LEX
| 22.5 | Common law |
|
| Common law is a system dating back to the foundation of the Parliamentary system in England and the relationship established between the Parliament and the Judiciary, independent of the Executive (the Monarch). |
||
| The English Common law system is based on the concept of “stare decisis” or precedent by courts which means that unlike Civil Law judicial precedents, Common Law judicial precedents by judges become effectively binding upon other court matters that impinge upon the same or similar matter unless a higher court ruling provides a new interpretation of the Parliament enacts a law defeating the precedent. |
||
| It sounds awfully complex and in a way it is, but with great benefit. It means the courts, responsible for enacting justice, have a huge say in the interpretation of law, not just its execution. |
||
| 22.5.1 | The benefits of the common law system |
|
| Where judges, particular higher court justices have found laws to be poorly rendered, or even absent, their rulings have formed the basis of significant social change. Similarly, judges are able to take greater accountability of the unique situations of individual cases and fair and wise judgment. |
||
| Above all, the judiciary is a second set of eyes and ears usually protecting the population against an executive and even a parliament that is not being held to account through poor laws. |
||
| The system also forces judges to consider their judgments very carefully and to ensure that justice is clearly seen to be done. For a poor judgment will almost certainly result in a successful overturning upon Appeal, while a wise judgment may yet set a new precedent. |
||
| 22.5.2 | The negatives of the common law system |
|
| The common law system relies on three fundamental tenets that if poorly rendered cause the system to fail miserably: |
||
| (1) The quality and qualification of the judiciary; (2) The volume of laws enacted and amendments to laws overturning precedents (3) The independence of the judiciary from the executive and the legislative branches |
||
| The common law system demands judges of high intellect, reading and personal integrity. Sometimes these qualities are hard to find in one person, let alone a whole judiciary. Therefore, occasionally judges are appointed less for their character and knowledge of law and more for political reward and influence. |
||
| As a result, the system can become corrupted by judicial delays, poorly rendered judgments and even deliberately unjust sentences against the historic precedents and accepted norms of society. |
||
| The significant increase in legal amendments and news laws can also corrupt the common law system purely on the basis that historic precedents are no longer valid, meaning court cases take long, rulings take more time and substantial more time is taken up understanding the impact of such new laws. |
||
| As a result, the legislative branch in directly intervening to try and skew the historic precedents and rulings of the judicial branch under common law can actually make things worse, not better. |
||
| A classic case is where legislative branches have introduced “truth in sentencing” laws, which by their own nature cause greater delays and injustice in the handling of cases. |
||
| The third problem is when the executive and/or the legislative branches interfere in the independence of the judiciary. |
||
| 22.5.3 | Solution | |
| The solution of Common Law given modern pressures and the practical constraints listed is that it is a vital system best suited for higher courts. | ||
Copyright © 2010 UCADIA. All rights reserved. |
||