A corpus of unwritten laws based on legal precedents established by courts is known as common law. In exceptional instances, where the outcome cannot be determined by the existing statutes or the written norms of law, common law plays a role in the decision-making process. The common-law system in the United States emerged from the 17th and 18th centuries. Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom all follow common law. Because there is no formal legal code that can be applied to a particular case, common law, also known as case law, relies on extensive records of previous events and statutes. The precedent that can apply to a case is determined by the judge presiding over that particular case. Cases tried in subordinate courts are bound by the precedent made by higher courts. In the United States, this approach fosters legal justice system stability and consistency. Lower courts, on the other hand, have the authority to alter or depart from precedents if they are out of date or if the current case is significantly different from the preceding case. Lower courts can also choose to overrule the precedent, but this rarely happens.
Examples of Common Law
In modern times, common law has served as the foundation for new laws.” In the last decade, authorities have used these ancient common laws to prosecute a new intrusive activity known as up skirting: the practice of inserting a camera between a person’s legs without their consent or knowledge to photograph or videotape their private parts for sexual gratification, humiliation, or distress. The Voyeurism (Offences) Act, approved by the UK Parliament in February 2019, makes up skirting a crime punishable by up to two years in prison and also places the prospect of being placed on the sex offenders register. Another common law example is secrecy between patients and doctors. The legal idea implies that information about a patient’s health, treatment, medical opinion, or medical records is kept private and confidential. The doctor has no legal authority to share such information about his patient to others.
Pros of Common Law
Legislation is clarified, expanded upon, and implemented by the common law. Judges play an important role in common law by evaluating individual circumstances in each case, enforcing the law based on their conclusions, and interpreting pertinent legislation.
In most cases, the concept of precedent is more successful since it ensures that the legal system is consistent and stable. It helps the parties understand that conclusions are determined exclusively on precedent not on arbitrary judgment or personal beliefs. Senior judges in higher courts are the ones who set precedents, which gives them valuable expertise.
Like on the point concerning specificity, common law can respond to circumstances, facts, and situations that legislators did not expect or foresee. It is difficult for Parliament to legislate for every possible problem, circumstance, or action that might occur in a community. Responses to real-life events can be developed and examined using common law.
Efficiency and Speed
Parliamentary law is less flexible, speedier, and responsive than common law. Common law frequently reacts and responds quickly to community expectations, shifting social ideals, and other factors. Courts and judges can decide on the changes needed while analyzing a case. Because the courts are not constrained by the procedural and political constraints that govern legislative processes, they can achieve law reform more quickly.
In comparison to their legislative counterparts, courts and judges are neither influenced nor dominated by ideology or party politics. As a result, unpopular or controversial legislative amendments can be enacted by the courts, even if they would undermine or harm a politician’s chances of re-election because the judiciary is independent in itself. By providing the effective rule of law for economic actors, common law systems have aided and accelerated economic progress in the country.
Cons of Common Law
Reactive, not proactive
The Judiciary is unable to amend the law on their own. Courts can only deal with cases that have been presented to them. Laws and precedents may be clearly obsolete and need reformation, but there is no way in which the judiciary can change them until criminal charges are filed, or civil action is filed against such laws and precedents.
Parliamentarians are elected by the people and are accountable to them, but judges are selected by the court system. This fact has led to accusations that judges are unaccountable to the public. Some people argue that judges make rulings that go against community standards and ideals and that common law is inherently undemocratic. This viewpoint is frequently stated in the media, particularly during sentencing disputes.
A secondary function
While Parliament’s primary function is to create legislation, the courts’ primary function is to deliver justice. So, the main purpose of any court is to dispense justice, with the development of common law as a subsequent result.
Lack of Review
Courts lack the staff, time, money, and opportunity to adequately analyze the common law modifications they make. Before being prepared and submitted into Parliament, the legislation goes through a number of examination, including inquiries, investigations, parliamentary committees, law reform bodies, and consultation. When making common law decisions, on the other hand, a judge or panel of judges has very little time and resources at their disposal.
Common law is easily overridden
Legislation can override common law at any time. The Parliament is known as the law-making authority, and common law is seen as inferior to parliament-enacted laws. The Parliament can legislate to abolish or amend common law if it believes it is problematic or does not reflect upon the views of the people.