Keith Mack
Common law is a legal system used in several countries that rely on past court decisions, customs, and legal precedents to guide future decisions. It is flexible in that it can adapt to new developments and situations, and respond to changes in society. This flexibility is due to the fact that common law is based on judicial precedents rather than codes or statutes. While this flexibility allows common law to be adaptable and responsive to real-life situations, it also means that it is reactive rather than proactive, and changes can only be made ex post facto. The flexibility of common law can encourage good judgement, as in the case of R (Soma Oil and Gas Ltd) v Director of the SFO, where the judge considered the economic consequences of a judgement that put legal principle before pragmatism.
| Characteristics | Values |
|---|---|
| Adaptability | Common law can adapt to unforeseen situations and new developments |
| Flexibility | Common law can respond to changes in society and is not bound by codes or statutes |
| Judicial independence | Judges are not elected and are therefore free to make decisions that may be unpopular with the majority |
| Judicial precedent | Common law is based on stare decisis, or following earlier decisions and rulings |
| Consistency | Common law provides stability and consistency through the doctrine of precedent |
| Judicial interpretation | Judges interpret relevant legislation and apply it to the specific facts of each case |
| Lack of scrutiny | Common law does not undergo the same level of scrutiny as Acts of Parliament |
| Secondary function | Creating common law is a secondary function of the courts, which exist primarily to administer justice |
| Criticisms | Common law is criticised for being undemocratic, lacking review, and being easily overridden by legislation |
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What You'll Learn
Common law is flexible because it is based on court decisions, not codes or statutes
Common law is a body of law based on court decisions and legal precedents rather than codes or statutes. It is flexible because it can respond to changes in society and adapt to new developments and situations.
Common law is not set in stone and can be changed or distinguished when outdated. It is not subject to the same scrutiny as an Act of Parliament, and can be created when a case is heard, allowing it to treat each case on a case-by-case basis. This flexibility is especially evident in the interpretation of past cases, where judges can consider whether a rule is being applied reasonably in the circumstances of a given case.
In contrast, civil law systems rely on a comprehensive code of statutes that outline procedures and punishments. Civil law systems are more prescriptive, with clear rules for judges to follow for specific disputes. While common law systems also follow precedents and caselaw, they are not bound by them in the same way as civil law systems. Judges in common law systems have more freedom to interpret and apply the law based on the specific facts of a case, and are not limited to following a predetermined set of rules.
The flexibility of common law allows it to respond to unforeseen situations and changes in society. It can address situations not originally predicted by lawmakers and adapt to new developments. This adaptability is a significant advantage of common law systems, as they can create outcomes that are fair for everyone involved in a case.
However, this flexibility can also be a disadvantage. The lack of a formal legislative process can lead to inconsistencies in decision-making and criticism of judges as being unaccountable to the people. Common law systems may also be slower to change as they rely on new cases being brought before the courts, and existing precedents may need to be distinguished or overturned.
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Common law adapts to new developments and situations
Common law is flexible and adaptable to new developments and situations. It is a body of law based on court decisions, judicial precedents, customs, and other decided legal proceedings. This flexibility is advantageous as it allows common law to respond to changes in society and adapt to unforeseen situations.
One of the key advantages of common law is its ability to adapt to new developments and situations. While statutes and rules created by lawmakers may not be able to predict all possible scenarios, common law can address situations not originally contemplated by lawmakers. This adaptability ensures that common law remains relevant and effective even as society evolves and new issues arise.
Common law is flexible in several ways. Firstly, it allows for distinguishing cases and setting aside old precedents when they become outdated. This flexibility ensures that common law can respond to unique cases that raise new dilemmas. For example, in the Soma Oil and Gas Ltd v Director of the SFO case, the judge considered the economic consequences of a judgment that prioritised legal principle over pragmatism and adjusted his decision accordingly. Secondly, common law can respond to cases, situations, and facts that were not anticipated by legislators. This is because common law is based on judicial decisions and precedents rather than codes or statutes, allowing it to be more responsive to real-life situations.
Furthermore, common law is flexible because it does not require the same lengthy process as creating a new Act of Parliament. In common law systems, higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to act. This flexibility allows common law to be more agile and responsive to changing needs and situations. Additionally, judges in common law systems are not elected, giving them more flexibility in their approach towards cases and the ability to make decisions without worrying about re-election.
However, it is important to note that common law also has some limitations in terms of flexibility. Common law is reactive rather than proactive, as courts can only change common law after a relevant case has been brought before them. Additionally, common law is considered inferior to legislation made by parliament, which can override it at any time. Despite these limitations, common law's flexibility allows it to adapt to new developments and situations, ensuring that it remains relevant and effective in a constantly changing society.
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Judges are not elected, so they can be flexible in their approach
Common law is a legal system that relies on caselaw and legal precedent to guide decisions. It is flexible and can adapt to new developments and situations. It is consistent but can be changed where necessary by distinguishing cases and setting aside old precedents when they become outdated.
Judges play a key role in common law by examining the specific facts of each case, interpreting relevant legislation, and administering the law accordingly. They make decisions, deliver rulings, and develop precedents, which together constitute common law.
Judges are typically appointed by the court system rather than elected, which has implications for their flexibility and decision-making. Not being elected means they are free from political ties and can take a flexible approach to their cases. They are not constrained by the need to maintain a particular political stance or to seek re-election, allowing them to make decisions based on the specifics of each case without worrying about their popularity.
However, the fact that judges are not elected has also been criticised as undemocratic, with concerns raised about their accountability to the people. There are debates around whether judges should be elected or appointed, with some arguing that appointments are better for certain types of judgeships and can help maintain independence and impartiality.
Overall, the fact that judges are not elected in common law systems allows them to be flexible in their approach, free from political constraints, and focused on rendering decisions based on the specifics of each case.
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Common law can respond to unforeseen cases
Common law is a body of law based on court decisions and case precedent rather than codes or statutes. It is a flexible system that can respond to unforeseen cases and changes in society.
When lawmakers create statutes and rules, they cannot predict all the situations in which courts may need to apply the laws. Common law systems allow courts to address situations not originally predicted by lawmakers. They can adapt to new developments and situations, distinguishing cases and setting aside old precedents when they become outdated.
In common law systems, judges are not elected and are therefore not bound by the same political ties as lawmakers. They can be more flexible in their approach and are able to make decisions that might not be popular with the majority. They can also make decisions based on the specific facts of each case, interpreting relevant legislation and administering the law in line with these findings.
However, some critics argue that common law is undemocratic and that judges make decisions that are inconsistent with community standards and values. Common law is also reactive rather than proactive, and it can be time-consuming and resource-intensive to change.
In conclusion, common law provides a flexible framework that can respond to unforeseen cases and adapt to new situations. While it offers advantages in terms of flexibility and responsiveness, it also has limitations and potential drawbacks.
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Common law is constantly changing
Common law is a body of law based on court decisions and precedents rather than codes or statutes. It is a flexible system that can adapt to new developments and situations, and respond to changes in society.
The flexibility of common law allows it to address situations not originally predicted by lawmakers. It can respond to unforeseen cases, situations, and facts that were not anticipated by legislators. This adaptability is particularly useful when dealing with unique cases that raise new dilemmas, as common law can treat these on a case-by-case basis, striving for a fair outcome for everyone involved.
The flexibility of common law also encourages good judgment. Judges are not elected and are therefore not influenced by political parties or the need for re-election. They can make decisions based on legal rules and principles, but they also have the autonomy to consider the reasonableness of applying those rules in the specific circumstances of each case.
However, the flexibility of common law also has its drawbacks. Some critics argue that it is undemocratic because judges are appointed and not directly accountable to the people. The decisions made by judges may be inconsistent with community standards and values, and the lack of a formal review process for common law decisions has been noted as a concern.
Overall, the flexibility of common law allows it to adapt to changing circumstances and encourage good judgment, but it also raises questions about democratic accountability and the consistency of judicial decisions with community values.
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Frequently asked questions
Common law is a legal system that relies on past judicial decisions, customs, and other decided legal proceedings such as the outcome of tribunals to guide future ones.
Common law is flexible because it can respond to changes in society and adapt to new developments and situations. It can also address situations not originally predicted by lawmakers.
Some advantages of common law are that it takes the law-making pressure off parliament, allows for laws to respond to real-life situations, and is more flexible than civil law.
Some disadvantages of common law are that it is slow, reactive rather than proactive, and made by individuals who are not elected or representative of the people. It is also considered undemocratic and easily overridden by legislation.
