What are the advantages and disadvantages of common law?


Like most aspects of law, common law has advantages and disadvantages. Some advantages include:

  • 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”.
  • Similar to the above point, common law can respond to cases, situations and facts that were not foreseen or anticipated by legislators. It is impossible for parliament to legislate for every possible situation or circumstance;
  • 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.
  • The point above notwithstanding, common law also allows for flexibility and change in decision-making. Precedents can be challenged, set aside and replaced by new precedents. The courts provide ample opportunity for common law reform.
  • Common law is faster, more flexible and responsive than parliamentary law. In other words, common law often reacts and responds more willingly to changing social values, community expectation and so on. The courts can achieve law reform faster because they are not bound by the political and procedural constraints of the legislative process.
  • Judges and courts are not guided and influenced by politics, unlike their law-making counterparts in the parliaments. The courts can therefore implement law reforms that are controversial or unpopular – reforms that might affect election results if they were initiated in the parliament. Abortion, for example, has been permitted under common law in three States, while the parliaments in those States have refused to legislate on the matter.

The disadvantages of common law include the following points:

  • 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 – yet until relevant criminal charges are laid or relevant civil action is initiated, there is no opportunity for these laws and precedents to be changed.
  • While creating legislation is the main function of parliament, making common law is not the main function of the courts. They instead exist to administer justice – law-making is a secondary outcome rather than a purpose of the courts.
  • Parliamentarians are elected by the people but judges are appointed by the court system. This invites criticism that judges are unaccountable to the people; that they make decisions inconsistent with community standards and values; and that common law is itself undemocratic. This point-of-view is often expressed in the media, particularly on the subject of sentencing.
  • Courts lack the time, resources and opportunity to fully consider changes to common law. New legislation may go through numerous inquiries, investigations, parliamentary committees, law reform bodies and consultation before it is drafted and introduced. In contrast, a judge or panel of judges have minimal time and resources at their disposal when forming common law decisions.
  • Common law can be overridden at any time by legislation. The parliament is the supreme law-making body and common law is inferior to laws made by the parliament. While this may be a disadvantage of common law, it is also a response to the point above (that common law is made undemocratically).

How courts make law

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