Kara Sears
Modern common law is a complex and evolving concept, with some arguing that it is incompatible with the core principle of separation of powers. It is dynamic and adaptable, reflecting generally accepted social practices and customs, but this flexibility can also lead to concerns about stability and predictability. In the US, the modern common law is considered by some to be conventional in the British Commonwealth sense, meaning it is defined by widely acknowledged, unwritten norms that are not formally enforceable in courts. This evolution of common law has resulted in judicial discretion, with judges remoulding laws based on their professional wisdom and insights, which has led to inconsistencies with the strict separation of powers.
| Characteristics | Values |
|---|---|
| Criminal law | Statutory, drafted by legislatures |
| Conventional, defined by widely acknowledged but unwritten norms | |
| Drafted by prosecutors through their charging decisions | |
| Dynamic, but not unstable or unpredictable | |
| Employs artful language, legal fictions, and other indirect means in the decision-making process | |
| Remolds laws based on judges' professional wisdom, skill, training, and insights |
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What You'll Learn
The common law's incompatibility with the separation of powers
Modern common law is a concept that varies across different nations. In the United States, for example, common law is considered statutory, with legislatures drafting substantive criminal law rather than courts. However, in practice, American legislatures often poorly draft and maintain criminal codes, effectively delegating the creation of criminal law to prosecutors. In Australia, the Constitution sets out the basic laws for the government and is structured to define how power is shared within the nation.
The separation of powers is a concept that requires the branches of government to act as checks and balances on each other's power. This concept, first described by French lawyer and philosopher Montesquieu, ensures that it is the law that rules, rather than an arbitrary ruler. The separation of powers is designed to protect human rights and prevent the concentration of power in any single person or group, which is viewed as a threat to liberty.
In Australia, the Constitution divides power through the Separation of Powers and Division of Powers. Chapters I to III outline the legislative, executive, and judicial powers of the Commonwealth as the three separate branches of government. The legislative branch (Parliament) has the power to make and change laws, while the executive branch enforces and implements them, and the judiciary resolves disputes.
However, the common law can be incompatible with the separation of powers concept in certain cases. For example, in the Boilermakers' case in Australia, the Commonwealth Court of Conciliation and Arbitration was granted the power to determine and enforce compliance with the terms and conditions of industrial awards. This case focused on an industrial dispute between the Boilermakers' Society of Australia and the Metal Trades Employers' Association, where the latter alleged that the former had breached the agreed-upon terms and conditions. This situation represents a blurring of the lines between the legislative, executive, and judicial powers, as the Court was involved in both determining and enforcing compliance with its decisions, potentially undermining the separation of powers.
Additionally, the rise in power of the federal regulatory bureaucracy, known as the regulatory or administrative state, has further eroded the separation of powers. In the United States, all three branches of government have wrongfully relinquished authority to the regulatory state. The legislative branch has delegated its lawmaking authority to regulatory agencies, the executive branch has allowed independent agency officials to make and enforce the law, and the judicial branch has shown bias toward agency officials in court. This shift of power to the regulatory state undermines the separation of powers and can have significant implications for governance and individual rights.
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Judicial fiat
The common law was traditionally viewed as a reflection of widely accepted social practices and customs. However, it has evolved into a more complex system of juristic thought, often employing nuanced language, legal fictions, and indirect decision-making processes. This evolution has introduced an element of judicial fiat, particularly in areas such as negligence law and governmental immunity cases. Judicial fiat refers to the power of judges to make and unmake law, effectively acting as policymakers when the state legislature fails to keep pace with societal changes.
In the context of modern common law, judicial fiat can have significant implications for the rule of law. On the one hand, judicial discretion allows judges to apply their professional wisdom, skill, training, and insights to legal decision-making. This can lead to a more flexible and adaptive legal system that is better equipped to address complex and evolving societal issues.
However, the downside of judicial fiat is that it can undermine the core principle of separation of powers. By allowing judges to exert substantial influence over the creation and interpretation of laws, there is a risk of individual interests or biases affecting the common law. This can result in inconsistencies and unpredictability in the legal system, making it difficult to uphold the rule of law consistently and fairly.
To address these concerns, some scholars advocate for a balance between judicial discretion and deference to the legislature. While judges should have the flexibility to interpret and apply laws based on their expertise, they should also adhere to stare decisis, particularly on significant matters of public policy. This means respecting precedent and legislative supremacy to ensure that the rule of law is preserved and the judicial system maintains its integrity.
In conclusion, judicial fiat is an important aspect of modern common law, reflecting the dynamic nature of the legal system. However, it must be carefully navigated to strike a balance between judicial discretion and respect for the separation of powers and legislative authority. This delicate equilibrium is crucial for maintaining a stable, predictable, and just legal framework.
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Common law's evolution from social practices and customs
Common law has evolved significantly from its origins as a reflection of generally accepted social practices and customs. While it was once seen as a direct mirror of societal norms, common law has transformed into a more complex system of juristic thought. This evolution has resulted in a dynamic body of law that adapts to changing social landscapes, often through the judicial process.
In the past, common law was a straightforward reflection of the social practices and customs that prevailed in a particular region. These norms were widely acknowledged and respected, forming the basis of common law. Over time, however, common law began to diverge from purely societal norms and evolved into a more nuanced methodology. This evolution was driven by several factors, including the need to address societal changes that legislatures were slow to respond to, and the influence of judges' individual discretion and insights.
One significant aspect of this evolution is the role of judicial discretion and the emergence of judicial fiat. Judges have increasingly employed their professional wisdom, skill, and training to remodel laws, a practice that has become widely accepted. This has resulted in an inconsistency with the principle of strict separation of powers, as judges effectively become policymakers when they reshape laws to fit contemporary contexts. The broad individual judicial discretion permitted by modern common law methodology can substantially impact the law and may have negative consequences for the rule of law if not tempered by adherence to stare decisis and deference to the legislature.
The evolution of common law is particularly notable in the field of negligence law and governmental immunity cases. In these areas, courts have actively shaped the law due to the slow response of state legislatures to societal changes. This has led to the proliferation of tort law and the expansion of tort liability, further shaping the legal landscape. Additionally, in the American context, criminal law has been influenced by legislative supremacy, with legislatures drafting substantive criminal law. However, this has resulted in poorly drafted and maintained criminal codes, effectively delegating the "real" drafting of criminal law to prosecutors through their charging decisions.
While the evolution of common law has introduced complexities and sometimes tensions with core principles, it also reflects the dynamic nature of law's interaction with society. Common law's evolution from social practices and customs has resulted in a system that can adapt to changing social landscapes and address gaps left by slow legislative responses. This evolution continues to shape the legal systems of various countries, influencing the interpretation and application of laws in modern contexts.
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Legislative supremacy
The concept of legislative supremacy is a key aspect of modern common law. Legislative supremacy asserts that legislatures, rather than courts, are responsible for drafting substantive criminal law. This principle is based on the idea that criminal law should be statutory, with clearly defined codes and legislation.
However, in practice, legislative supremacy may face challenges due to the dynamic nature of common law. Common law, originally based on generally accepted social practices and customs, has evolved to include judicial discretion, indirect means, and artful language in the decision-making process. This evolution has resulted in an inconsistency with the principle of strict separation of powers, as judges may act as policymakers when the legislature fails to keep pace with societal changes.
In the American context, legislative supremacy in criminal law may be hindered by the ineffective drafting and maintenance of criminal codes by legislatures. This can lead to a delegation of power to prosecutors, who effectively shape the law through their charging decisions. As a result, criminal law may be influenced by unwritten common-law-like norms that are widely respected but not formally recognised as enforceable in courts.
To maintain legislative supremacy and the integrity of the judicial system, judicial discretion must be balanced with adherence to stare decisis and deference to the legislature, especially on significant matters of public policy. This ensures stability and predictability in the law while respecting the foundational principle of separation of powers in federal and state constitutions.
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Judicial discretion
The common law was traditionally viewed as a reflection of widely accepted social practices and customs. However, it has evolved to become a flexible system of juristic thought, which may involve the use of artful language, legal fictions, and other indirect methods in the decision-making process. This evolution has resulted in an inconsistency with the principle of strict separation of powers among the branches of government.
In the context of modern common law, judicial discretion is particularly notable in negligence law and governmental immunity cases. In these cases, courts may become de facto policymakers when the state legislature fails to keep up with societal changes. This effectively delegates the "real" drafting of criminal law to prosecutors, who form the law through their charging decisions.
To preserve the rule of law and the integrity of the judicial system, it is important that judicial discretion is balanced with adherence to stare decisis and deference to the legislature, especially on significant matters of public policy. This ensures that the law remains stable, predictable, and consistent with the foundational principle of separation of powers.
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Frequently asked questions
The modern common law is a method of juristic thought that may employ artful language, legal fictions, and other indirect means in the decision-making process. It is in a state of flux, which can threaten stability and predictability.
The relationship between the two is described as "uncomfortable". The common law may permit individual judicial discretion, which can negatively affect the rule of law and cause inconsistency with the principle of strict separation of powers.
In Florida, the common law of England as of July 4, 1776, was adopted by statute, provided it was consistent with the Constitution and state laws. The state courts applied English methodology and traditions in developing Florida's common law.
Robert Leider offers three visions of the modern American criminal law in his article "The Modern Common Law of Crime". The first is that criminal law is statutory and legislatures draft substantive criminal law. The second is similar but ends with democratic dysfunction, effectively delegating the "real" drafting of criminal law to prosecutors. The third vision is that modern American criminal law is "conventional" in the British Commonwealth sense, defined by widely acknowledged but unenforced unwritten norms.
