Anti-democratic law. Parliamentarians are elected by the people and are accountable to the people, but judges are appointed by the judiciary. This fact leads to criticism of judges as not being accountable to the people. Some believe that judges make decisions that are not consistent with community standards and values. They believe that the common law itself is undemocratic. This view is often expressed in the media, particularly in sentencing debates. Political independence. Unlike their legislative counterparts in parliaments, judges and courts are not dominated or controlled by politics or partisan ideology. For this reason, the courts can carry out legislative reforms that could be controversial or unpopular – reforms that could affect or even sabotage the government`s electoral chances if initiated in parliament. Abortion, for example, has been permitted under common law in three states — but the legislatures of those states have refused to legislate on the issue. First, we will remember what the common law is, as well as other types of statutes and the differences between them.
Next, we will reflect on the benefits of the common law and how it helps the legal system. The common law is more flexible, faster and more responsive than parliamentary law. Often, the common law responds quickly to community expectations, changing social values, etc. Institutional law changes institutions or parliament, allowing courts and judges to do so to decide whether an amendment is needed while considering a case. The courts are not bound by the procedural and political constraints of a legislative process, so they can proceed more quickly with legal reforms. Flexibility. The common law gives us consistency, but it also allows for flexibility and changes in legislation. Precedents can be challenged, set aside and replaced by new precedents. The courts provide ample opportunity for common law reform. This process is similar to that of the common law system. The difference lies in the effect of the interpretation of the law by the judiciary.
Although the court`s decision may have an influence on future cases, its reasoning and interpretation of the law outside the particular case have little legal effect. Judicial interpretation is not a precedent that binds the court (or lower courts) in future proceedings. Currently, a number of societies around the world are reforming their legal systems, often after overcoming years of oppression. Two transatlantic models, civil law and common law, will have a major impact on these reforms. On the one hand, the two basic models already cover more than 70 per cent of the world`s population in about 62 per cent of existing legal systems. In addition, the westernisation of a legal system will bring many practical and economic benefits, which necessarily implies integrating at least some aspects of one or both transatlantic models. The key is to extract the best features from the models and adapt them to the specific legal culture. In particular, the civil law approach to judicial structuring has much to recommend. A dominant feature of the civil law model is the responsibility it confers on the judge in resolving disputes.
It is true that common law judges have more power in the sense that they can develop the law from precedents, whereas civilian judges do not. However, the civil judge dominates individual disputes and, therefore, good dispute resolution depends on the quality of his judges and their ability to perform their duties to the best of their ability. Therefore, lessons learned from civil justice must be given special attention when reforming a legal system. Unforeseen cases. As with respect to the details above, the common law may also respond to cases, situations and facts that were not foreseen or foreseen by Parliament. It is impossible for Parliament to legislate for every possible problem, action or condition that may arise in society. The common law can examine and develop responses to real-world situations. The common law is a set of unwritten statutes based on past precedents. The courts create the common law by hearing different types of cases and setting a precedent for decisions in such cases. This process differs from that of civil law, where laws are created on the basis of laws adopted by legislative bodies or regulations created by the executive.
The interpretation of the court becomes the common law in that jurisdiction. In this way, the court develops customary law that applies alongside the law. Since the common law is based on a clear system of judicial precedents that must be followed, every matter that comes before the courts should be treated in the same way. This means that anyone who has to appear before the court can review existing precedents and determine the likely outcome of the case. Precedents are set by higher courts, so the judge who sets them also has more experience and helps them make laws that work for everyone. Courts and judges are not controlled or dominated by partisan ideology or politics compared to their counterparts in the Legislative Assembly.