Commonwealth Law: Can It Be Unjust?

The Commonwealth of Nations is a union of 56 sovereign states with a combined population of 2.4 billion people. The Commonwealth's legal systems are largely based on English common law, which is a system of law based on judges' decisions and customs rather than written laws. While the rule of law is fundamental to fostering democratic and accountable governance within the Commonwealth, the question of whether a law of the Commonwealth can be unjust is complex and multifaceted. This complexity is further amplified when considering the interplay between Commonwealth laws and the laws of individual member states, where conflicts and inconsistencies can arise, leading to judicial debates and interpretations.

Commonwealth laws are founded on English common law

The Commonwealth legal systems are rooted in English common law, which has been adopted and adapted by Commonwealth countries. The common law of England was introduced to colonies that were conquered, ceded, or settled, and the timing of this varied based on the circumstances of each colony. The common law of England originated in the decades following the Norman Conquest in 1066, when much of England's legal work took place in local folk courts. The term "common law" was used because it was common to all the king's courts across England.

Commonwealth countries have legal systems that are rooted in English common law, but over time, these systems have diverged significantly from their parent system. For example, in the area of public law, England has no written constitution and restricts judicial review, while in the United States, every court has the power to pass judgment on the conformity of legislation and other official actions to constitutional norms. Additionally, in the field of libel, U.S. practice is less strict than English law, as public figures cannot sue for honest but unfair and untrue criticisms of their activities. In England, published facts must be true, and comments must be fair.

Another example of the differences between Commonwealth countries and England is the law relating to restitution and the right to recover property mistakenly transferred to another. This law has developed significantly in England since the 1960s, demonstrating the continued evolution of the common-law tradition of decision-based legal development. In contrast, nearly all American states protect the surviving spouse against disinheritance by securing a fixed, indefeasible share of the decedent's estate.

The commonality in the legal systems of Commonwealth countries promotes legal harmonization and makes legal cooperation easier and more cost-effective between its members. The framework for Commonwealth legal cooperation is found in the Commonwealth Schemes on the administration of justice, which represent reciprocal arrangements between Commonwealth countries to cooperate within the parameters of their national laws. This includes assistance in criminal matters, extradition, the return of material cultural heritage, and allowing those convicted in foreign countries to serve their sentences in their home country.

Common law is based on judges' decisions and custom

The concept of common law is often contrasted with the civil law system. Civil law is a comprehensive, codified set of legal statutes created by legislators. It clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. Common law, on the other hand, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries.

Common law, also known as case law, originated in England in the Middle Ages in the King's Court (Curia Regis). It has since evolved and spread, with the United States, the United Kingdom, and most member states of the Commonwealth now operating under a dual system of both common and civil law.

At the center of common law is a legal principle known as stare decisis, which means "to stand by things decided." In practice, this means that courts and judges need to follow earlier decisions and rulings, or caselaw, when dealing with similar cases later. This system promotes stability and consistency in the legal system, as everyone involved knows that the outcome will be based on previous caselaw rather than subjective viewpoints. It also allows for adaptability and flexibility, as common law can address situations not originally predicted or legislated by lawmakers.

While common law has many benefits, it is important to recognize that it has also led to the unfair marginalization or disempowerment of certain groups. Past decisions, whether outdated or biased, continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. For example, in England, common law held until the 1970s that fathers were entitled to custody of children in cases of divorce, effectively keeping women trapped in marriages.

Commonwealth laws can prevail over state laws

The Commonwealth Secretariat seeks to uphold the rule of law and promote democratic and accountable governance in member countries. This is achieved by helping countries develop legal frameworks that enable them to become credible trading partners, fulfil international legal obligations, and achieve development goals.

The commonality in the legal systems of Commonwealth member countries promotes legal harmonisation and makes legal cooperation easier and more cost-effective. However, conflicts can arise between Commonwealth and state laws.

Section 109 of the Constitution provides that when a state law is inconsistent with a Commonwealth law, the Commonwealth law prevails, and the inconsistent parts of the state law become inoperative. Determining whether an inconsistency exists can be challenging, and the issue has sparked lengthy judicial debates.

A conflict arises if a state law alters, impairs, or detracts from the operation of a Commonwealth law. This can occur through a direct clash between the laws, such as when one law requires or permits an action that the other forbids, making it impossible to obey both laws. For example, in the case of McBain v Victoria, a direct conflict was found between a Victorian law requiring a woman to be married or in a de facto relationship to be eligible for IVF treatment and the Commonwealth law.

In summary, while Commonwealth laws can prevail over state laws in cases of inconsistency, the determination of inconsistency is complex and subject to judicial interpretation.

Commonwealth countries cooperate legally

The Commonwealth of Nations, originally known as the British Commonwealth, was officially formed in 1926 with the Balfour Declaration of the Imperial Conference, which recognised the full sovereignty of dominions. The original members were Australia, Canada, the Irish Free State, Newfoundland, New Zealand, South Africa, and the United Kingdom.

The London Declaration of 1949 marked the birth of the modern Commonwealth and the adoption of its present name. The Commonwealth currently comprises 2.6 billion people, almost a third of the world's population, with 95% living in Africa and Asia. The most recent members to join were the Francophone African nations of Gabon and Togo, who, along with Mozambique and Rwanda, are unique in not having a historical constitutional relationship with the United Kingdom or other Commonwealth states.

The Commonwealth is characterised by a shared culture, including the English language, sports, legal systems, education, and government. This commonality in legal systems promotes legal harmonisation and makes legal cooperation easier and more cost-effective between member countries. The framework for Commonwealth legal cooperation is found in the Commonwealth Schemes on the administration of justice, which represent reciprocal arrangements between Commonwealth countries to cooperate within the parameters of their national laws.

For example, the Commonwealth Secretariat has been helping countries develop legal frameworks to become credible trading partners, fulfil their international legal obligations, and achieve their development goals. This includes support in upholding intellectual property law and addressing the abuse of intellectual property rights (IPR) through the production and distribution of counterfeit and pirated goods. The Rule of Law Programme has enabled the Secretariat to assist countries in developing stronger enforcement mechanisms, criminalising IP offences, and enabling the prosecution of those manufacturing and distributing fake goods.

While member states have no legal obligations to one another, some grant particular rights to Commonwealth citizens. For example, the United Kingdom and several other countries, mostly in the Caribbean, grant resident Commonwealth citizens the right to vote. Additionally, some countries, including the United Kingdom, have preferential citizenship acquisition or residency policies for Commonwealth citizens.

Common law systems may provide better property rights

Common law systems are based on precedent, allowing for some freedom of interpretation. This means that common law can adapt to situations that were not contemplated at the time by the legislature. This adaptability may provide better protection of property rights.

The Commonwealth of Nations, which represents one-quarter of the world's population, has prioritised the rule of law as fundamental to fostering democratic and accountable governance. The Commonwealth Secretariat's Programme on the rule of law supports member countries in upholding the rule of law through legal, judicial, and constitutional reform. This includes specific areas of focus such as intellectual property law and the abuse of intellectual property rights (IPR) through counterfeit and pirate goods.

The stability and predictability provided by a common law system can promote confidence in parties to protect property rights and enforce contractual rights effectively. For example, the concept of common-law marriage in the US acknowledges similar rights to married couples for those who are not officially married if certain conditions are met.

However, it is important to note that common law can also perpetuate injustice if popular thought or civil legislation does not drive changes in interpretation. For instance, common law in England once held that fathers were entitled to custody of children in divorces, effectively trapping women in marriages.

In conclusion, while common law systems may provide better property rights through their adaptability and stability, they must be supported by a commitment to justice and equitable interpretation to prevent the perpetuation of injustice.

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