Characteristics of the Common Law System PDF

Preview

Summary

Characteristics of the Common Law System
Role of Common Law judges in the English Legal System
Methods of Legal Reasoning
Difference between the trial methods (adversarial and inquisitorial trials)...

Description

1 Common Law Lecture 3: 6/5/19 Characteristics of the Common Law System 1. The law existed even though it could not be immediately found. English law has no boundaries and is always evolving / growing. According to Professor Dworkin, English law is seen as a ‘seamless web’ ie English law has no boundaries and is always evolving or growing. English law will never going to stop evolving unless parliament completely codify the entire common law. As more cases come to court, the judges have an opportunity to extend the legal principles. For example: in Fagan v Metropolitan Police Commissioner (MPC) 1969, the laws on assault / battery could not have foreseen the doctrine of continuing act in Fagan. This shows that the law existed even though it could not be immediately found. The principle is there, but it is waiting for the judges to discover it when cases comes in. In essence, the statement that English Law is seen as a ‘seamless web’ suggests that the nature of unwritten law is it has the capacity to grow and evolve. Judges have the opportunity to include more if the law is unwritten / uncodified. For example: English law does not have a statutory definition of domestic violence. However if there were one, the law will be limiting future acts of domestic violence to those definitions. Thus, a codified law’s defect is that it is fixed and rigid, thus hindering the progression of law. 2. Judges cannot look beyond legislation to determine the meaning of statutes, and no consideration of morality prevails against parliament. When there is written law (statute), written law will always prevail over common law. 3. Another distinctive characteristics of common law culture is that there is jury trials. Jury trials involve the participation of ordinary men in a criminal trial to decide the verdict of the defendant. Jury will not decide on legal matters, their job is to decide on factual matters after being explained what the law is. Role of Common Law judges in the English Legal System 1. Their decisions are a source of law. Case laws that comes from judges are considered as unwritten law and these are binding if it comes from the highest court. For example: the law on the murder isn’t a statutory offence but still a common law offence until today. Another area that is still based on case law is the law of negligence under tort law. 2. They have legitimate authority to come out with principles. These principles are in relation to real-life disputes, not hypothetical instances. Parliament can foreseen the future to a certain extent. So judges are the best persons to come with principles because judges are the first-hand receiver of disputes and that there is no one better than judges to come up with principles. On the other hand, Parliament deals with drafting the law and they mainly deals with hypothetical instances, which is not based on real facts. 3. Judges only declare what the law is, not make the law. Due to parliamentary sovereignty, this limits the judges’ ability to make law. However, judges may extend, interpret and modify current laws. One of the most widely-accepted principles of the English legal system is the 'Declaratory Theory' of judicial decision-making. This principle states that when judges are required to make decisions, they do not create or change the law, they merely 'declare' it. The Declaratory Theory is frequently used as a shield against accusations that judges do in fact make law. If this theory is accepted, the judge does not make the law but is only applying the legislation (legal rules) created by Parliament. While it is generally understood that in practice judges do not merely declare the law, they are also often careful in their judgments not to suggest they are creating new law, because this is beyond their formal constitutional role.

2 4. According to Professor Dworkin, judges are seen as the author of a chain novel. An english judges reaches a decision on legal problems never before addressed but does not do so as an original author. The decision has to fit previous precedents and flow well with future development. Dworkin has compared common law jurisprudence to chain novels by suggesting that judges, like chain novel authors, must elaborate and follow the laws set before them. In chain novels, the author of Chapter 2 must read Chapter 1 before continuing writing the Chapter 2 story. The author of Chapter 1 must end Chapter 1 in a very open manner. Every author will contribute to a chapter and it is a collective effort. So everytime there is a case, judges will look back at previous case laws and look behind to see is there anything close to their case. If they were to introduce new principles, they must make sure that it is not difficult for future developments. Thus, judges are not going to make any drastic changes or else they will be criticised as it is unjust for parties. Common Law System vs Civil Law System Common Law System Sources of Law

Civil Law System

Legal disputes in the common law system Legal disputes in the civil law system are settled by are settled by looking at precedents. references made to codified / written law. Written laws are issued by the state and clarified by legal academicians.

Litigation System

The litigation system in the common law system follows the Adversarial trial. Adversarial trials are lengthy and there is a lot of reliance on oral arguments.

The litigation system in the civil law system follows the Inquisitorial trial. Inquisitorial trials, also known as paper trial, is a very simplified trial and naturally less complex and shorter than the adversarial system.

Role of the judiciary

The judiciary in the common law system is very central. They are independently making laws separate from the state. They enjoy the separation from the state when making decisions

Judiciary in the civil law system relies more on state as they rely on the state for certain matters such as policy reasoning. The state provides the codified law, thus the civil law system judiciary will have a greater reliance on the state compared to the common law system.

Methods of Legal Reasoning 1. Inductive Legal Reasoning - legal principles are derived and extracted from the text of many single judgements. Inferring a general principle only after a string of precedents justify that inference. A legal principle is established by looking at many previous judgements. Inductive reasoning involve arguing from the particular to general, which judges look at legal cases and arrive at 1 general principle. Inductive reasoning involves drawing a general conclusion from specific examples 2. Deductive Legal Reasoning - the civil law system employs deductive legal reasoning. Legal principles come from an exhaustive code in which all subsequent cases must be judged in light of the code. In civil law system, the codified legal principles is provided by the state, the judges only need to apply the codified legal principles to the individual disputes. Deductive legal reasoning involves reasoning from general to the specific. English judges uses both legal reasoning method nowadays depending on the source of law. For example ● Acts of Parliament → Deductive Legal Reasoning (Acts of Parliament are codified legal principles) ● Common Law cases → Inductive Legal Reasoning

3

Example of deductive legal reasoning: ● General Statement: All men are mortal ● Specific Statement: Socrates is a man. ● General Principle: Socrates is a mortal Difference between the trial methods (adversarial and inquisitorial trials) ●

In adversarial trial, the control of proceedings is in the hands of the lawyers and the parties (litigants). They control the form, pace and content of the proceedings. The judges are not very active, they listen more than they speak. The judges leave the parties to battle. Adversarial trials are very costly and inefficient due to delays etc.

●

In inquisitorial trials, the control the proceedings is in the hands of the courts. The inquisitorial trial is very efficient as the parties do not control anything as compared to adversarial system which favors the rich. Today, the inquisitorial trial system is adapted into the English Legal System in various aspects such as case management. Adversarial System

Inquisitorial System (paper system)

Definition

In the adversarial system, representatives from each party take opposing positions to debate and argue their case, whilst the Judge's role is to uphold principles of fairness and equality and to remain neutral until the very end when he gives judgment.

In the inquisitorial system, the judge is actively involved in preparing evidence, questioning witnesses and finding the truth.

Countries

The adversarial system is practiced in common law The inquisitorial system is practiced in countries civil law countries

Evidences

Evidences are presented by arguing in open court

Evidences and arguments are in written form. Simplified submissions lead to less room for oral arguments

The adversarial trial is more expensive. The parties have to bear the full legal cost. If its a criminal trial, the trial is paid by the state because the states brings the defendant to court. For a civil case (ex. Breach of contract) the parties will bear the full cost (burden is fully on the parties)

In inquisitorial trials, the state may pay for some of the fees because proceedings is simpler and the fact that parties are not in control.

Cost

Advantages and disadvantages

● ● ●

Lengthy (a lot of delays) Costly Complex (favors the rich)

● ● ●

Less delays Less cost Less complexities...