Common to frame my own standpoint on the

 

Common law
today forms the basis of many legal systems worldwide, especially of those countries
that formed part of the British empire. However, this was never a simple case
of transferring a set of laws overseas, among other things because common law
traditionally defined itself by principles, precedents and procedures – not a
written legal code. This system underwent very important transformations,
through the decisions of colonial judges, colonial and imperial legislation,
and the recognition of other sources of law. With regard
to the legal system, the Common Law of England became the Common Law of the
particular colonies, and the structure of the court system in large measure
mirrored that of England with no regard to relevance or suitability to local
conditions. The influence of Britain on its former colonies is obviously strong,
and despite their independent status many countries of the Commonwealth very
often follow verbatim the wording of English statutes in drafting their own. In
spite of and maybe because of the varied mosaic of cultures, traditions and
customs of the countries which share the same history of English colonialism,
the common law and the body of precedent built up around it has been enriched
in its development, and made strong, and dynamic. In this essay I will examine to which extend does
common law influence the former British colonies. I will also provide some case
studies for the clarity of what is implied. Ultimately, having carried out
profound analysis, I will endeavor to  frame my own standpoint on the topic.

Firstly,
to provide the context for the further study it is crucial to define what
common law presents itself. The common law was named so because it was
“common” to all the king’s courts across England. It was originated in
the centuries following the Norman
Conquest in 1066.Like many other early legal systems, it did not originally consist of substantive rights
but rather of procedural remedies. The working out of these remedies has, over
time, produced the contemporary system in which rights are put higher that the
procedure itself. Until the late 19th century, English common law continued to
be developed primarily by judges rather than
legislators. Common law is generally uncodified. Although common law relies on particular
statues, which are legislative decisions, it is mostly based on precedent, judicial
decisions that have already been made in similar cases. These precedents are
maintained over time through the records of the courts as well as historically
documented in collections of case law known as yearbooks and reports.

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The precedents to be
applied in the decision of each new case are determined by the presiding judge.  As a result, judges are the key actors  in shaping the law of Britain. Common law
functions as a confronting system, a battle between two opposing parties before
a judge who moderates. A jury of ordinary people without legal training decides
on the facts of the case. The judge then determines the appropriate sentence based
on the jury’s verdict. In case any contradictions on the question what law is
occur, a common law court looks to past precedential  decisions of
relevant courts, and synthesizes the principles of those past cases as
applicable to the current facts. If a similar controversy has been resolved
before, the court is usually follows the reasoning used in the prior decision (this
term is defined as stare decisis).

 Today, one-third of the world’s population
lives in common law jurisdictions or in systems mixed with civil
law. Here, let me consider Australias’ judicial system as
a case – study.1

In
1901 six Australian colonies were consolidated into the ” Commonwealth of
Australia”. The Constitution of the Australian Commonwealth was based upon the
Constitution of the United States. The Commonwealth of Australia was a federation
of colonies which, before the federation, were for all practical purposes
autonomous. The Constitution of the Commonwealth was an act of the Imperial Parliament
in England, but it was amendable by the Australians themselves without the
necessity of applying to the British Parliament for permission to amend. A
nominal right of approval of any amendment was, however, reserved to the Crown.
The Constitution provides for the creation of a court to be known as the High
Court of Australia and of such inferior courts as the Parliament of the
Commonwealth may deem necessary or proper to establish. In other words, the
Commonwealth can create a complete judicial system of its own, just as Congress
has done in the United States. Up to the present time, however, the
Commonwealth Parliament has seen fit to establish only the High Court
consisting of three judges and to grant to the judges of the State courts, in
addition to their powers as State judges, jurisdiction in federal matters. As
the Commonwealth increases in population a complete federal judiciary will
undoubtedly be created. Each component State in the Commonwealth has of course
its own judicial system comprising a Supreme Court and subor dinate courts. The
number of the judges of the Supreme Court varies with the size and the
importance of the State, but in every State the judges of the Supreme Court
hold trial sittings as well as appellate sittings and they have jurisdiction
both at law and in equity. The plan prevailing in Australia, where judges of
the State courts do trial and appellate work, obtains in most of the British
colonies. There are courts in the British colonies, such as the Supreme Court
of Canada, the judges of which conduct no trials, but the general rule, for
reasons of economy in administration, is that all British colonial judges of
the Supreme Court shall hold trial sessions of court and shall collectively
hear appeals ( Reymond, 1907).

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1 Refer
to University of Exeter, Law School to access the list of the countries
following common law system.Availablefrom:https://socialsciences.exeter.ac.uk/law/study/undergraduate/commonlawcountries/.
Accessed 30 December, 2017

 

 

As
my second case -study I would like to examine the judicial system in Canada. The Canadian legal
system has its foundation in the English common law system, inherited from
being a former colony of the United Kingdom and later a Commonwealth
Realm member of the Commonwealth
of Nations. Canada has a bi-jurisdictional common system, as the responsibilities
of public and private law are separated and exercised exclusively by Parliament
and the provinces respectively. All provinces and territories within
Canada, excluding Quebec, follow the common law  legal tradition. Equally, courts
have power under the provincial Judicature Acts to apply equity.2
As with all common
law countries, Canadian law adheres to the doctrine of stare decisis.  Lower
courts must follow the decisions of higher courts by which they are bound.  Due to Canada’s historical connection
with the United Kingdom, decisions of the House
of Lords before 1867 are technically still binding on Canada unless they
have been overturned by the Supreme Court of Canada, and Canada is still bound
by the decisions of the Privy Council before the
abolishment of appeals to that entity in 1949. In practice,
however, no court in Canada has declared itself bound by any English court
decision for decades.

What are the advantages
of common law? Firstly, having a common law legal system allows new laws to be
developed in response to new situations or changing values in our society.
Sometimes lawyers will take cases before a judge for the purpose of trying to
change or create new law, called “test cases”. If a case does make a new law,
we call it a precedent setting case.

Secondly, the “Rule of Law” is one of
the most significant principles in the common law system which states that law
should govern a nation, not individuals and arbitrary decisions. We require
judges to provide reasons for decisions so that we can make sure that decisions
are not being made based on individual feelings, opinions or biases.

One may also  inquire how parliament makes laws and I find
it significant to provide this information. Democratic
countries have a legislature or parliament, with the power to make new laws or
change old ones. Canada is a federation – a union of several provinces and
territories with a central government. So it has both a federal parliament in
Ottawa to make laws for all of Canada and a legislature in each of the ten
provinces and three territories that deals with laws in their areas. Laws
enacted at either level are called statutes, legislation, or acts. When
Parliament or a provincial or territorial legislature passes a statute, it
takes the place of common law or precedents dealing with the same subject.

 

 

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2 In jurisdictions
following the English Common Law System, equity refers to the body of law which was developed in the
English Court of Chancery and which is now administered
concurrently with the common law.

 

As
the scope of my essay is  limited I am
not able to refer to all commonwealth countries and describe their judicial
frameworks. However, the fact that a lot of states still follow the system,
rooted by the United Kingdom in the 17 th century appears to be
obvious. Although the alternatives to the common law system can easily be found
countries stick to it for several reasons. Firstly, British precedents remain as
the basis of law. Secondly, because of the  lack of qualified lawyers creating a new legal
system is challenging. And , ultimately, religious and  cultural diversions could also serve as an
obstacle.

 

 

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