i) Equity: Part of the grounds for arguing in favor of the common law system over the codified system is its characteristically equitable qualities. Since antecedents are pursued in all cases, everyone gets the same treatment. This same legal procedure is administered to everyone in spite of their position or creed. Therefore, this system of going by antecedents which had hitherto been set usually leads to equity and fairness. This system of law also has the advantage over the codified system by offering protection to persons via the law of tort. ii) Expedient: Since decisions are predicated on previous rulings, it is much easier to pursue this procedure. There is an expectation on the part of people, as there is conformity in terms of the outcome to expect. The procedure is far more flexible and much more realistic as there no set, long drawn rules but real scenarios that have already been dealt with. This is a clear advantage over the codified system where the judges have follow and apply the rules of the code exactly. …show more content…
For this reason, it is much more efficient in its process in relation to the codified system which does not follow this process of a precedent based system. As the decisions made are premised on antecedents, they have a firmer basis. This is an obvious advantage over the common law as the codified system of law has to rely on the creation of rules and legislation rather using case laws to create future
There could be arguments supporting it and arguments going against it. As a result, the citizens of the UK saw a codified constitution as a necessity at that moment. However, there are many advantages of an uncodified constitution. The biggest advantage is the idea of flexibility. As societies are changing, and societal norms take new forms, it is very important for the constitution of countries to adapt to that quickly, as a country’s constitution should be in the best interest for its citizens.
In addition to this, the analysis of law was not considered thoroughly during judicial decisions. Therefore, the court uses backward reasoning where it uses the expected results it wants to deduce to make decisions. Such activities in the justice department have a lot of impediments to the impartiality of judicial system. The rights of the criminal in many instances are affected by the use of such methods to deliver justice. According to Marshall, the legal analysis used to determine the outcome of the courts has reduced since the changes in the judicial system. The rights of the individuals have significantly reduced with the changes in the court system because only the nine judges are privy to the outcome of the court proceedings; they are also not liable to the questions that may be raised about the legality of their
The introduction of common law allowed for determination of which behaviors are crimes and what the appropriate punishment should be. Regoli and Hewitt (2008) states, “One of the most important concepts operating in common law was the doctrine of precedent, or stare decisis (literally “to stand by the decisions”). The doctrine allows courts to interpret and apply law based on previous court decisions.” Judges were required to decide new cases based on principles established in previous cases. They were required to interpret the law in the same way and follow the precedent. Many Americans felt that the English system of law was inappropriate for their new nation. They feared citizens would not understand their roles and responsibilities under the
Throughout the years there has been limitless legal cases presented to the court systems. All cases are not the same. Some cases vary from decisions that are made by a single judge, while other cases decisions are made by a jury. As cases are presented they typically start off as disputes, misunderstandings, or failure to comply among other things. It is possible to settle some cases outside of the courts, but that does require understanding and cooperation by all parties involved. However, for those that are not so willing to settle out of court, they eventually visit the court system. The court system is not in existence to cause humiliation for anyone, but more so to offer a helping hand from a legal prospective. At the same time, the legal system is not to be abuse. or misused either.
Legal codes in the judicial system is the key distinction between the civil law and common law tradition. It is the supreme source of justice in a society and is meant to provide the common good for a society. Whether or not a country is governed by a civil or common law code greatly influences the role of the judiciary system. Including the presence and role of judicial review. Given these points, civil law clashes with the theory of individualism, therefore this tradition could not work in the American system. Civil law is markedly inflexible because it is difficult to update common law to change with the times. Until relevant criminal charges are laid out or relevant civil action is initiated, there is not an opportunity for these laws and precedents to be changed.
changed in terms of its power of deciding cases. It has on the other hand
Something more common is stare decisis, which is a type of methodology, and common law that they use along with interpreting the constitution. It is used so judges have some type of consistency and are bound to their past decisions. Stare decisis there are four primary reasons to follow it, it treats cases the the same, makes the law more predictable, strengthens judicial decision making and furthers stability (Oldfather, 2014). This is important in regards to constitutional interpretation because it is basically saying that judge is also bound to past constitutional interpretation. Some of the precedents produced by stare decisis are bad, but that’s because the system is not perfect. The implementation of precedence is also complicated because you have to find cases that are sufficiently alike and most cases are not identical (Oldfather, 2014). Another significant factor in stare decisis, is that the courts usually feel more comfortable in overruling constitutional precedents than amending the constitution, which is much more difficult. Stare decisis is commonly used in adjudication, probably the most prominent articulation of it was in Planned Parenthood v. Casey, where they analyzed if they wanted to overturn Roe v. Wade, in terms of its workability (Oldfather,
In this essay, I will be discussing how the formal theory of the rule of law is an erroneous means of establishing laws within a state. A central theme to addressing this essay is the distinction between formal and substantive theories of the rule of law. In order to reach the conclusion of the formal theory being proven to be insufficient, one must first appreciate the significant advantages which the substantive theory obtains. However, before doing so, I will briefly mention the importance of the rule of law in society and the requirements it needs to fulfil. Most people would dispute that the significance of law in society is to obtain justice, however justice is simply a term which is determined subjectively, it relates to an individuals moral viewpoint.
The intention of this essay is to explain the process of law reform within the English legal system. The way in which the activity of parliament and that of the judiciary affects the way in which laws are reformed in the UK will be also discussed. The common law system in the UK means that the UK's primary legal principles have been developed by the judiciary rather than by parliament. However, as parliamentary sovereignty is an important key principle of the UK constitution parliament is the supreme legal authority in the UK. Parliament can create, change or repeal any law and generally speaking the judiciary cannot overrule legislation that has been passed by parliament.
The English legal system is ostensibly embedded on a foundation of a ‘high degree of certainty with adaptability’ based on a steady ‘mode’ of legal reasoning. This rests on four propositions
United Kingdom is a country with a distinctive set of legal system. It is fairly different from other countries having civil law based legal systems. The legal system in the United Kingdom consists of various sources of law, where other civil law based countries rely only on a written set of law. European influences on the English Legal System came much later in near decades. This essay will aim to examine the development of the English Legal System by reviewing applications of various sources of law in the English Legal System furthermore to discuss the recent European influences on the law of England.
To be sure, modern laws are made to express the general will, a will that aims at the common good. This means that laws in most cases intend to protect every social member’s rights under the principle of justice and fairness. For telling examples one need to look no further than American judicial system. The access to the two courts systems, one federal court and one state court, provides citizens with the greatest potential to have their legal problems resolved quickly and justly. Besides, the entire U.S. legal system depends upon the involvement and integrity of citizens in the roles of parties, witnesses, jurors, legal counsel and judges， making the legislation, judgment and enforcement respecting more citizens' will, which is probably based on various interests, so that laws can be as just as possible. Therefore, modern laws are in nature pursuing to treat and protect every individual in the society.
Firstly in this report, I will be giving the different definitions of rule of law by different philosophers; secondly, I will be applying the rule of law to the English Legal system and thirdly I will be explaining separation of powers with a focus on the impartial judiciary. Finally, I will be using cases to support every detailed point given.
His next five laws are about how law is applied; agencies of the law must enforce the law using fair and equal processes. Therefore is is clear that formal theories focus on only procedures and application. The substantive theory of the rule of law, it is important to note that the rule of law is inherently cumulative, meaning it is concerned with the same principles as the formal theory of the rule of law, however adds to it by focusing on its content, substantive theorist believe that law’s content must be good in order to comply with the rule of law. Like Raz, Lord Bingham, the key advocate for the substantive theory, also has eight principles, however it is only his fourth principle that is substantive - “the law must afford adequate protection of fundamental human rights’’ It is evident that this principle is about the substance of law, the substantive theory goes further by explaining law must protect individuals and must not require us to breach our human
Law is the foundation of central structures of social life on which society’s integrity depends, which is why Petrazycki, Ehrlich and Habermas perceive it to be a key steering mechanism in society,