In my last blog post, we looked at some of the benefits of common law, such as greater flexibility and helping to ensure that there are no gaps in the law that would allow an unjust outcome. In this blog post, we will consider the other side of this – what some of the disadvantages of common law are. Hopefully, this will give you a balanced view of the topic, allowing you to come to your own conclusions.
We will consider what some of the disadvantages are below, but we will start by quickly going over what common law is. Essentially, common law is law that is made by courts, rather than by Parliament (including Acts of Parliament) or by other bodies granted some limited law-making powers by Parliament (such as secondary legislation).
Common law can be in the form of judicial precedents set by judges when deciding a case or may come from things that the judges said in their ruling that may be relevant to a later case (obiter dicta). Once a precedent has been set, it is then binding on all the lower courts. Although judicial precedents don’t usually bind the court they originated from, they are certainly considered persuasive when they are coming to their decision.
Common law is rooted in the customs and morals held by society, as judges try to apply these views to cases they hear. It develops as it is needed, adapting quicker than Parliament can to areas that didn’t need a ruling on before, such as crimes committed online. Many areas of civil law that now have legislation to cover them originated in common law, for example, tort and negligence.
Disadvantages of Common Law
Undemocratic
Now that we have established what common law is and where it comes from, we will start considering some of the disadvantages of it. One of the most frequently mentioned disadvantages of common law is that it is undemocratic. Legislation, such as Acts of Parliament, is made by democratically elected representatives, whereas common law comes from judges. Judges are not elected by the public, so they cannot be held accountable in the same way Parliament can.
Judges may make decisions that seem to be at odds with the views of the electorate, whereas law made by the elected Parliament should at least reflect what the MPs’ constituents would like. As they do not run the risk of not being re-elected, judges may feel more able to make controversial decisions, possibly ones that are influenced by their own opinions rather than being entirely neutral.
Following Bad Precedents
If a judge does make a bad ruling, it still becomes precedent, even if other judges disagree with it. This is more of a problem the higher up the court hierarchy the decision was made, as precedents can only be overruled by a higher court. Even the same court that made the bad ruling is unlikely to want to break their own precedent, although this is technically possible. This means that any bad decisions made will likely stay in the court system of precedents for quite a while.
This is complicated further by precedents set many years before, that may well not have been a bad ruling at the time. However, the community’s opinions and views on justice tend to change over the years, so what was once an acceptable outcome to a case now seems unjust. Nevertheless, the precedent will still stand until it is overruled, which can only happen if the case proceeds to a higher court.
Changes are Reactive
Continuing with the thought of historical precedents that no longer make sense or are not in line with current views, remember that nothing can be done pre-emptively about this. Judges and the courts may well know that a particular precedent is outdated and needs changing, but there is nothing that they can do about this. Even the highest courts cannot change the precedent already set before they hear a case that concerns it.
This means that common law can only ever be reactive in response to cases, rather than having any power to amend precedents. This can create uncertainty in the law – a precedent may say one thing, but there is no guarantee that this will not be overturned, especially if it seems to be outdated.
Needs More Reviewing
Another problem with common law is that it is not reviewed in any way before it becomes law. Whereas draft legislation has to go through an extensive review procedure before it is passed, there is no such system in place for common law. This means that common law is not as thoroughly reviewed, so mistakes and bad phrasing can become law.
Wrapping Up
I hope this helps you understand some of the downsides of common law. In my next blog post, we will be looking at the different methods of ADR available, so come back in two weeks for that.
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