Describe the English “common law” legal system, explain how it operates in practice and assess its advantages and disadvantages.
Common law has been developed in the 9th century in the European countries and was used to administer by the well known county courts. The bishops and the sheriffs used the common law to decide dispute in the civil jurisdiction (Llewellyn, 2016). The exact history of common law is traced back from the middle ages. In the middle ages the judgements were recorded as plea rolls and in the year books. The modern common law system has been developed during the thirteenth century and is traced in “Bracton’s On the Laws and Customs of England”. The common law is often traced in the history of Roman law. From 18th century onwards the common law system has been developed with equity and the courts is modern period observe common law jurisdictions through equity to provide justice to the litigants (Morton et al. 2017).
Common law is the law which has been developed by the judges. It is that part of law which is not a statutory or codified law. Common law is a system where the judiciary or the judges, courts or tribunals make laws through the interpretation of laws made in their judgements and decisions (Milsom, 2014). Common law is also as judicial precedents, case law and in European countries it is termed as the judge-made law. When the parties to the decision does not agree to the decision of the court or the court cannot come to a decision where the question of law are many then the court observes the prior judgements made by its superior courts or relevant courts to decide the dispute. In practice, the court actually follows the principle laid down by the superior courts in its judgement where the fact and question of law is similar. In the practice the subordinate court is bound to follow the decisions or the principles of the priory decided cases of any superior court consist of similar facts and question of law. The decisions of the superior courts are binding on the subordinate courts , judges and the litigants in question (Abbott, 2014). The legal system in common and generally used in the modern court proceedings in most of common law countries of the world. There are many misconceptions with regard to the common law system. Many people have said that the common law system has existed in popular cultures and non law sources. However, the common law system has not been developed from customs or ancient usages but it has been developed from the time being when modern laws have been prevalent in the society. Many lawyers and legal professional believe that common law has been developed only at the times of Roman Empire but it is not correct as common law develops every day with every new judgement which becomes a precedent.
The principles of the common law system have been analysed from an extensive research to determine what common law is and how it is used. The person must ascertain that there should be a fact of the dispute or a point which has laid to the dispute, then it would find the statute and case laws which has similar facts or question of law in the dispute and then the person must find the principles laid down in the previous cases by the courts or judges which is referred to as judicial precedent. Precedents are the judgements or decisions or interpretation of facts and laws made by any superior court which the lower or the subordinate court dealing with similar facts and question of law should be bound to apply (MacCormick Summers, and Goodhart, 2016).
Common law is a part of law which is made by judges through their judgements, decisions and used as precedents for resolving disputes arising in future. Like all other aspects, the common law system too has some advantages and disadvantages. The advantages of the common law system is that it is used to clarify interpret and implement legislation. The acts or statutes consisting of provisions have a broad or generalised meaning (Solove and Hartzog, 2014). In the common law system the judges plays a vital role to examine the facts in dispute, interprets the provisions of law or enactments and implement the interpretation as per the facts of the cases. Where it is impossible for the parliament to enact laws based on each and every problem that may arise in the future, the common law system develops the laws as required depending on the situation and the circumstances. The common law system is consistent and so it works effectively to provide justice and resolve disputes between the litigants. The precedents in the common law practice are flexible as it can be changed and set aside by establishing or forming another new precedent. With flexibility, the common law system is speedy and efficient depending on the changing social needs. The judiciary is independent from all other sectors of the government and so the common law system is independent from any political or governmental pressure (Hudson, 2014).
As we all know that if there is an advantage there will be some disadvantages too. The disadvantages are that the courts or judges form law or legal principle within their decisions only after getting a particular fact. The principles laid down in the courts lack review and may contradict the object of the statutes and laws for which it has been made. The precedents are easily overridden and set aside which complicates the procedures and creates delay in justice (Elsing and Townsend, 2014).
Thus, having such disadvantages, the common law system is fair and helps in delivering speedy justice to the litigants. In the present scenario the courts are over burdened with litigations but the common law system helps the courts to deliver the judgement easily as it is based on prior or previous judgements. The laws are not specific to the facts of the cases but the usage of common law practice helps the litigants to get prior knowledge that whether they would get decisions in their favour or not and so day-by-day the number of litigations are decreasing.
Llewellyn, K.N., 2016. The common law tradition: Deciding appeals (Vol. 16). Quid Pro Books.
Morton, P.G., Fontaine, D., Hudak, C.M. and Gallo, B.M., 2017. Critical care nursing: a holistic approach. Lippincott Williams & Wilkins.
Milsom, S.F.C., 2014. Historical foundations of the common law. Butterworth-Heinemann.
Abbott, A., 2014. The system of professions: An essay on the division of expert labor. University of Chicago Press.
MacCormick, D.N., Summers, R.S. and Goodhart, A.L. eds., 2016. Interpreting precedents: a comparative study. Routledge.
Hudson, J., 2014. The formation of English common law: law and society in England from the Norman Conquest to Magna Carta. Routledge.
Solove, D.J. and Hartzog, W., 2014. The FTC and the new common law of privacy. Colum. L. Rev., 114, p.583.
Elsing, S.H. and Townsend, J.M., 2014. Bridging the Common Law-Civil Law Divide in Arbitration. Arbitration International, 18(1), pp.59-65.