The benefits of common law over legislation—that is, acts passed by parliament and secondary legislation—will be discussed in this blog post. In contrast, common law offers numerous advantages that should be considered while writing about legal sources, for instance. Naturally, common law has drawbacks as well, which we shall discuss in a later blog article.
We will first review the definition of common law, as well as other categories of legislation and their distinctions. After that, we’ll start delving into the benefits of common law and how it supports the legal system.
What is the Common Law?
Common law, commonly known as case law, is a body of law derived from traditions, court decisions, and other settled legal processes including tribunal rulings. Common law is enacted immediately upon its decision, without the need for the extensive review that an Act of Parliament requires.
Common law adheres to past rulings from the courts. The court will base its decision on the facts of the case; if comparable facts arise in a subsequent case, the court must adhere to the precedent established in the first case and determine the subsequent case in the same manner. This is only not applicable if the facts allow the case to be distinguished due to a substantial difference in the circumstances.
Although courts may bind themselves to adopt their own precedents, precedents only bind the courts lower in the court hierarchy than the precedent-setting court. Common law, however, is always evolving since there are always fresh scenarios that need to be distinguished and brand-new scenarios for which there is no precedent or legislation.
Acts of Parliament: What Are They?
Legislation created by Parliament through a predetermined process is known as an act of parliament. More information on that can be found here and here. Additionally, secondary law is created by other organizations with authorization from Parliament.
Benefits of Common Law
Regularity
Every matter that makes its way through the legal system should be handled uniformly since common law is founded on a precise set of judicial precedents that must be adhered to. This implies that anyone scheduled to appear in court will be able to ascertain the case’s anticipated conclusion by reviewing the prior decisions. Since higher courts establish precedents, the judges who establish them will also have greater experience, which will aid them in crafting legislation that benefits all parties.
The parties are aware that decisions are constantly founded on prior cases thanks to the system of judicial precedent, as opposed to solely being the judge’s judgment, which may differ depending on which judge heard the case. A case may be distinguished and not follow established precedent, but if this happens, the judge should be able to provide a valid explanation.
Flexibility
The adaptability of common law to new circumstances and advancements is one of its advantages. Common law is flexible even though it is consistent in certain situations. To do this, instances can be distinguished, and as previous precedents become antiquated, they can even be overturned.
Additionally, common law is far more capable of handling special issues that provide novel challenges than Parliament. It would take a while to construct a new Act of Parliament to address this, but after the matter is tried, common law can be established. Since Parliament is unable to foresee every possible scenario, common law can handle each one individually, attempting to reach a solution that is equitable for all parties.
Particulars
Since they are unable to foresee every circumstance, acts of parliament adopt a wide approach when enacting legislation. Common law is required to cut this down since, although this is beneficial for laying a solid foundation for the law, it is not appropriate for every case that will be considered.
Judges have the option to consider the particular facts of each case and base their conclusions on them. This is most evident when they choose to distinguish a case on the basis of a specific point that sets it apart from other cases, enabling them to render just decisions in cases. There could be some extremely unfair outcomes for circumstances that are different from the scenarios that Parliament had in mind if only the broad approach that was approved by Parliament was applied.
Neutrality in politics
Judges and courts are not as closely affiliated with any one political party as Parliament is since they are not elected in the same manner. Regardless of their political inclinations, they should reach the same conclusion and be more adaptable in how they approach issues.
They have the authority to make judgments that may not be supported by the majority of people because they are not elected. They are more free to decide contentious matters since they are not concerned with running for office again.