In this blog post, we will be considering what the advantages of common law are over legislation; that is, Acts made by Parliament and secondary legislation. Common law does have many benefits in comparison, which are worth keeping in mind if you are writing about sources of law, for example. Of course, there are also disadvantages to common law, which we will consider in a later blog post.
First of all, we will remind ourselves of what common law is, as well as other types of legislation and the differences between them. Then, we will move on to start thinking about what the advantages of common law are and how it helps the legal system.
What is Common Law?
Common law, sometimes also referred to as case law, is a type of law that is taken from judicial precedents, customs and other decided legal proceedings such as the outcome of tribunals. Common law never has to undergo the sort of scrutiny that an Act of Parliament does and instead becomes law as soon as it is first decided.
Common law follows precedents set by the courts in earlier cases. The facts of the case will be used by the court to come to its decision; if a later case has similar facts, the court must follow the precedent set in the first case and decide the new one the same way. The exception to this is if the facts are significantly different enough for the case to be distinguished.
Precedents only bind the courts below the precedent-setting court in the court hierarchy, although courts may bind themselves to follow their own precedents. However, as there are constantly new situations arising that need to be distinguished, as well as entirely new situations where there is no legislation or precedent, common law is constantly changing.
What are Acts of Parliament?
Acts of Parliament are legislation made by Parliament following a set procedure. You can read more about that here and here. There is also secondary legislation, which is made by other bodies but delegated by Parliament.
Advantages of Common Law
Consistency
As common law is based on a clear system of judicial precedents that must be followed, every case that passes through the courts should be treated in the same way. This means that anyone due to appear in court can look back through the existing precedents and determine the likely outcome of the case. Precedents are set by the higher courts, so the judge creating them will also have more experience, helping them to make law that works for everyone.
The system of judicial precedent means that the parties know decisions are made consistently based on past cases, rather than just being the judge’s decision, which could vary according to which judge heard the case. There is the possibility that a case will be distinguished and not follow the precedent set, but this should be for a good reason that the judge can explain.
Adaptability
One of the benefits of common law is how flexible it is and able to adapt to new developments and situations. Although common law is consistent, it is also possible to change it where necessary. This can be done by distinguishing cases and even setting aside old precedents when they become outdated.
Common law can also respond a lot better than Parliament to unique cases that raise a new dilemma. Making a new Act of Parliament to deal with this would take a long time, whereas common law can be created when the case is heard. Parliament can’t predict every situation that may arise, so common law can treat these on a case-by-case basis, trying to create an outcome that is fair for everyone involved.
Specificity
Acts of Parliament take a broad approach to creating law, as they cannot possibly predict every situation. While this is good for creating a strong foundation for the law, it is not suitable for every case that will be heard, so common law is needed to narrow this down.
Judges can look at the specific facts in each case and make their decisions according to these. This is seen most when they decide to distinguish a case based on a particular point that differs from existing cases, allowing them to rule on cases in a way that is just. If only the broad approach adopted by Parliament was used, there could be some very unfair outcomes for cases that are distinct from the situations that Parliament had in mind.
Political Neutrality
As courts and judges are not elected in the same way that Parliament is, they do not have the same ties to one particular political party. They can be more flexible in their approach towards cases and should come to the same conclusion no matter what their political leanings are.
The fact that they are not elected also means that they can make decisions that might not be popular with the majority of people. As they do not need to worry about re-election, they have more freedom to judge controversial cases.
Wrapping Up
I hope that this helps you to understand how having a common law system can help the legal system. In my next blog post, we will be looking at the disadvantages of common law, so come back in two weeks for that!
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