Scarica Common Law: Origins, Characteristics, and Advantages vs. Disadvantages e più Appunti in PDF di Diritto Greco solo su Docsity! Student: Maria Ludovica Pisani Common Law is a legal system in which the law is predominantly judicial and this is why judges are said to create law in this system. Common Law originated in medieval England and spread throughout the world with British colonial conquests. It is the legal family to which the USA belongs (except Louisiana), Canada (except Québec), Australia, New Zealand, Malaysia, India, etc. The distinctive feature of common law is that it represents the law of the courts as expressed in judicial decisions. The judge, in deciding a case, is required to resolve the dispute by applying the judicial precedents, that is to the sentences given by other judges in similar previous cases. This goes in contrast to the civil law system, which is based on statutes and prescribed texts. Other characteristics of common law system are trial by jury and the doctrine of the supremacy of the law. Originally, supremacy of the law meant that not even the king was above the law, but today it means that acts of governmental agencies are subject to scrutiny in ordinary legal proceedings. Regarding, instead, the principle of the judicial precedent, it can operate both vertically and horizontally: vertically because any decision taken in a higher court, is binding over lower courts; horizontally, because a court must comply with its own precedent. The case Duport Steel v Sirs [1980] 1 All ER 529 provides us how judicial making law is essential in the perspective of common law. Lord Scarman noted that in our society, the judges have in some aspects of their work a discretionary power to do justice so wide that they may be regarded as lawmakers. Today, to reflect a healthily expanding public concern with ‘justice through the law’, a great deal of public, social, medical, political, sporting and educational life has become justiciable. Our law must be allowed to develop in a socially organic way where that is possible, so that our senior judges can avoid the ossification of established rules. Therefore, in cases that go to the Supreme Court, it is always an open question as to whether the court will retain established precepts or whether it will act boldly to alter the law itself. For change, compelling arguments must be advanced by counsel. But the judges, nowadays, remain the ones acting like legislators. A system based on common law has both advantages and disadvantages. There are three main arguments in favour of such a system: that it is fair, foreseeable and efficient: it is fair, because following precedents in all cases means that all people are treated equally; it is foreseeable, because basing decisions on precedent means that potential litigants have a good idea as to how their cases will be decided. Another advantage of the precedent-based common law system is that the judicial process can be relatively fast, as there are already examples in place on which to base a ruling. Instead, the disadvantages include the perpetuation of bad rulings and certain difficulties when there is no precedent for the case before the court. Once a bad decision has been made by a higher court, that decision will remain law until the same court, or a higher court, overrules the decision. Courts do not like to overrule their own decisions unless absolutely necessary, and so bad decisions can remain law for a long time. Another problem area is where the court has no precedent to apply to the case
