Common law – advantages and disadvantages

common law

Judges being ‘unelected’ is a criticism often voiced about common law

Common law is law that is made by judges rather than the parliament. As judges consider both criminal and civil matters, they make decisions, deliver rulings and develop precedents. Taken together, these things constitute common law. A good deal of our civil law, such as torts and negligence, began life as common law. Like most aspects of law, common law has advantages and disadvantages. Common law takes some law-making pressure off parliament and allows for laws to respond to real life situations. But common law is also slow, reactive rather than proactive and made by individuals who are not elected or representative of the people.

Advantages of common law

Specificity. Common law expands on, clarifies and implements legislation. The wording of acts of parliament is often broad and generic, providing general instruction on the law but not how it should work in certain situations. The role of judges and common law is to examine specific facts for each case, interpret relevant legislation and administer the law in line with these findings. As one jurist put it, “common law puts meat on legislative bones”.

Unforeseen cases. Similar to the point above about specifics, common law can also respond to cases, situations and facts that were not foreseen or anticipated by legislators. It is impossible for parliament to legislate for every possible problem, action or condition that might arise in society. Common law can examine and develop responses to real life situations.

Consistency. The doctrine of precedent works effectively for the most part because it provides stability and consistency in the legal system. Parties involved in trials and hearings can understand that decisions made are based on precedent, rather than personal views or arbitrary judgement. Precedents tend to be developed by senior judges in higher courts, which lends them authority and experience.

Flexibility. Common law provides us with consistency but it also allows for flexibility and change in law-making. Precedents can be challenged, set aside and replaced by new precedents. The courts provide ample opportunity for common law reform.

Speed and efficiency. Common law is faster, more flexible and responsive than parliamentary law. Common law often reacts and responds more quickly to changing social values, community expectation and so on. Institutional law reform bodies or the parliament years to decide on the need for change; judges and courts can do it while reviewing one case. The courts can also achieve law reform faster because they are not bound by the political and procedural constraints of the legislative process.

Political independence. Unlike their law-making counterparts in the parliaments, judges and courts are not dominated or controlled by party politics or ideology. Because of this, the courts can implement law reforms that might be controversial or unpopular – reforms that might affect or even sabotage the government’s chances for election if they were initiated in the parliament. Abortion, for example, has been permitted under common law in three States – but the parliaments in those States have refused to legislate on the matter.

Disadvantages of common law

Reactive, not proactive. Unlike the parliament, the courts can only change common law ex post facto (‘after the fact’). They cannot change the law of their own accord. Courts can only deal with cases which are brought before them. Laws and precedents may be obviously outdated and in need of reform – but until relevant criminal charges are laid or relevant civil action is initiated, there is not an opportunity for these laws and precedents to be changed.

A secondary function. Creating legislation is the main function of parliament, however forming common law is not the main function of the courts. The courts exist primarily to administer justice and developing common law is a secondary outcome.

Undemocratic law. Parliamentarians are elected by and responsible to the people – but judges are appointed by the court system. This fact leads to criticism of judges as being unaccountable to the people. Some believe judges make decisions that are inconsistent with community standards and values; they believe that common law is itself undemocratic. This point of view is often expressed in the media, particularly during debates about sentencing.

Lack of review. Courts lack the personnel, time, resources and opportunity to fully consider the changes they make to common law. In the parliament, draft legislation will go through numerous stages of review, including inquiries, investigations, parliamentary committees, law reform bodies and consultation, before it is drafted and introduced. In contrast, a judge or panel of judges has minimal time and resources at their disposal when forming common law decisions.

Easily overridden. Common law can be overridden at any time by legislation. The parliament is the supreme law-making body and common law is considered inferior to legislation made by the parliament. This may be a disadvantage of common law, however it is also a response to the point about common law being undemocratic. If the parliament considers that common law is problematic or does not reflect the views  of the people, it can legislative to abolish or change it.