Gavin Howe
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a system that relies on precedent, where the law evolves as the result of judicial decision-making guided by broader principles of justice and practical considerations. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. While common law is adaptable and flexible, it has also led to the unfair marginalization or disempowerment of certain groups. This has prompted a discussion on how to oppose common law, with some advocating for a switch to a civil law system, which is a comprehensive, codified set of legal statutes created by legislators. To effectively oppose common law, one must develop a strong argument, gather support, and carry the message with force. This includes raising questions that provoke doubt, highlighting potential negative consequences, and presenting research and data to support the opposition.
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What You'll Learn
Argue for a fixed constitution
The United States Constitution was constructed to withstand the test of time, and its principles are considered timeless by some. It is a legal document, not a living organism, and was not intended to be easily changed. The process of adding amendments is intentionally difficult. Changing the Constitution to give the government more power could be detrimental to individual liberty.
One can argue that the Constitution is a living document in the sense that it will always remain relevant, but it is not a dynamic document. It withholds power from the government and gives it to the people.
Some antifederalists argue that a bill of rights is necessary to explicitly state and retain the fundamental rights of the people, which would also serve as a warning when those rights are threatened. However, federalists reject this idea, asserting that the people retain all rights and powers not granted to the federal government. They also believe that bills of rights are useless in times of crisis and have been overridden in the past.
Legal academics may insist that they are not telling courts how to decide cases, but if a particular ground of decision is of interest to the courts, they may imply that their interpretation is the correct one. Lawyers and politicians adapted common law techniques for interpreting legal texts to the U.S. Constitution, and these techniques are still used today.
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Highlight the unpredictability of common law
A common law system is one where the law evolves over time as a result of judicial precedent. Judges update the law in response to overall principles of justice and fairness, as well as practical considerations. They assess whether the current arrangement is "working" and try to evolve the law if it isn't.
One of the major challenges of common law is its uncertainty and unpredictability. This can be caused by different courts interpreting the law differently in similar cases. Another complication is when judges or courts reach the same conclusion for different reasons or when different judges reach different conclusions in the same case. In the latter instance, the opinion of the majority of judges decides the outcome of the case.
The doctrine of precedent, which states that judges should follow legal rulings from previously decided cases, is used to avoid uncertainty in the law. When identical facts occur in two cases, the judge should follow the decision in the earlier case. However, it is rare for cases to have identical facts, and judges can ''distinguish' between old and new decisions if they believe a difference between facts is more important than a similarity. This results in different precedents being set, which can lead to unpredictability in the law.
The evolution of common law over time can also lead to uncertainty. For example, the word "regulated" has shifted in its understanding in the 200 years since the bill of rights was written. This shift in language can lead to uncertainty in the interpretation of the law.
In the context of federal common law, unpredictability can arise when federal and state privilege rules conflict. Rule 501, enacted by Congress in 1975, states that common law governs a claim of privilege, except in civil cases where state law governs privilege. This can make it difficult to anticipate which law will apply in cases with both state and federal claims.
To oppose common law, one could highlight these uncertainties and argue for a more standardized and codified set of legal statutes, such as those found in a civil law system.
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Emphasise the need for a comprehensive, codified set of statutes
Civil law is a comprehensive, codified set of legal statutes created by legislators. A civil system clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. Civil law systems have clear rules for how judges need to rule for many specific disputes. Civil law is regularly updated, and the goal of standardized codes is to create order and reduce biased systems in which laws are applied differently from case to case.
In contrast, common law is a body of unwritten laws based on legal precedents established by the courts. Common law relies on detailed records of similar situations and statutes because there is no official legal code that can apply to a case at hand. The judge presiding over a case determines which precedents apply to that particular case. Common law is flexible and adaptable to unforeseen situations, as it can respond to changes in society. However, it has been criticised for allowing outdated or biased past decisions to continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent.
The two main legal systems used today are common law systems and civil law systems. Common law systems rely on caselaw and legal precedent to guide their decisions, while civil law systems rely primarily on codes and statutes. The contrast between civil law and common law legal systems has become increasingly blurred, with common law countries adopting codes in areas such as bankruptcy, intellectual property, antitrust, banking regulation, securities, and tax law.
Jeremy Bentham, for example, criticised judicial lawmaking and argued in favour of codification and narrow judicial decisions. Emphasising the need for a comprehensive, codified set of statutes is a way to oppose common law and support a civil law system. This involves advocating for clear rules and standardised codes that reduce bias and inconsistency in the application of laws. It also means prioritising the creation of order over the flexibility and adaptability offered by common law.
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Point to past unfair marginalisation
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in England and has been the primary source of law for several hundred years. The process of making, implementing, and interpreting the law creates margins that determine what is and is not included in a legal text, which can result in the marginalisation of certain groups or communities.
Women
Outdated or biased decisions made under common law have continued to shape future rulings until societal changes prompt a judicial body to overturn the precedent. For example, in the past, common law has contributed to the marginalisation of women due to outdated or biased decisions that have influenced future rulings.
Non-traditional households
Common law has historically favoured traditional marriage and marital childbearing, contributing to a class divide in marital partnerships. This has further marginalised non-traditional household structures, which are more common among lower socioeconomic status groups.
Indigenous communities, landless rural workers, and victims of violence
Common law intersects with policy and society, influencing access to justice for marginalised communities. For example, the World Justice Project's book, "Marginalized Communities and Access to Justice", examines how courts administer laws pertaining to the entitlements of indigenous communities, landless rural workers, and victims of violence.
Non-religious prisoners
Non-religious prisoners are marginalised by their removal from society, and this marginalisation is deepened by the assumption that their spiritual or pastoral needs can be met by a professional religious chaplain. This assumption leads to the denial of non-religious pastoral care services in prisons or the provision of only patchy and inconsistent care.
Households struggling with homelessness
Households that fail to establish their 'homelessness' according to the current legal standard are marginalised by their material deprivation and the state's failure to recognise their particular needs.
To oppose common law, one could argue that it leads to the unfair marginalisation of certain groups, as illustrated in the examples above. It is important to recognise that common law allows for flexibility and adaptability in the legal system, empowering judges to resolve novel issues and establish new precedents. However, the reliance on precedent can also result in the marginalisation or disempowerment of certain groups when outdated or biased past decisions shape future rulings.
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Advocate for a less flexible system
It could be argued that a less flexible legal system would provide greater certainty and stability. Here are some points that could be made in advocating for a less flexible legal system:
Firstly, a rigid system based on statutory law provides clear, predetermined rules that are consistently applied across similar cases. This predictability allows individuals and businesses to plan their affairs with confidence, knowing that the law will be applied as written without unexpected deviations or exceptions.
Secondly, a less flexible system reduces judicial discretion, which can help prevent potential bias or inconsistency in decision-making. When judges have limited discretion, they are less able to impose their personal values or interpretations on the law, thereby reducing the potential for unfairness or inequality in legal outcomes.
Thirdly, advocate for a comprehensive code of laws that leaves little room for judicial interpretation. This could involve drafting detailed statutes that cover a wide range of potential scenarios and situations, leaving little ambiguity about the legislature's intent. By providing clear guidance, legislators can ensure that the law is applied as they intended, reducing the potential for judicial activism or creative interpretations.
Additionally, it is worth considering the benefits of a slower, more deliberate law-making process. By imposing stringent requirements for amending or creating new laws, such as supermajority voting rules or lengthy review periods, the system can guard against hasty or impulsive changes that may have unintended consequences. While this may make it more challenging to adapt to rapidly changing social or economic conditions, it could also prevent ill-considered legislation from being enacted.
Finally, it could be beneficial to establish strong mechanisms for enforcing the law consistently. This might include investing in robust law enforcement training, resources, and infrastructure. By ensuring that the laws are consistently and uniformly enforced, individuals and businesses will have greater certainty about the consequences of their actions, promoting trust in the legal system and encouraging compliance.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system that relies on precedent, where the law evolves as the result of judicial decision-making guided by broader principles of justice and practical considerations. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It is generally more prescriptive than a common law system. Civil law systems rely primarily on codes and statutes, and clearly define the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense.
Common law is flexible and adaptable to unforeseen situations. It is less prescriptive than civil law, allowing for greater freedom of contract. Court proceedings can also be shorter, saving time and money.
Common law may result in inconsistent outcomes and can be subject to the biases of individual judges. It may also be difficult to apply in certain areas, such as infrastructure projects, where specific legal concepts are well-defined in civil law jurisdictions.
Opposing the use of common law would involve advocating for a switch to a civil law system. This could include building a strong argument, gathering support, and finding champions in leadership who support a civil law system. It may also involve targeting lawmakers who can block legislation related to the use of common law. Additionally, you can try to prevent the introduction of new bills related to common law.
