Jun 4, 2020
category: Law

Common law means the law that is created by the judges while considering a particular case. As a rule, such approach to legislation helps judges make decisions efficiently, to develop legal precedents focusing on specific facts about the case, and to deliver rulings. Precedents could be applied during the consideration of future events, which also affects the strengths and weaknesses of the common law and highlights the scope of this legislation in the clearly distinguishable sphere. These three components form the common law that has its advantages and disadvantages. This paper describes the pros of the common law.

Most lawyers are inclined to believe that the strongest pro of the common law is its specificity (TransLegal, 2016). Due to its nature, the common law allows judges to extend legislation on the case, as well as to implement it in the most effective way. As it is known, the regulations that are approved by the Parliament are often too superficial. Naturally, these rules can provide some instructions on the law but they are very wide. This lack of parliamentary laws reduces the efficiency of refereeing and also complicates the process of the considering the case. Thanks to the common law, judges have the opportunity to highlight their key role in the examination of cases and the study of facts that are relevant to them along with interpreting the appropriate laws in the most suitable way (Investopedia, 2016). Common law allows judges to manage the legislation so that it benefits when considering the court case.

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Based on the above advantage, it is possible to select the next one. The common law improves consideration of emergencies and unforeseen cases. Due to the fact that such law has the ability to adapt to specific legal cases, judges have the power to react to certain situations, facts and cases that are not envisaged by the Parliament. In turn, the Parliament is not able to foresee all the problems and the legal cases that may arise in society. Consequently, the common law provides an opportunity to examine the specific legal cases, situations, and actions, and to develop laws focusing on them, as well as to interpret the responses based on real-life situations (TransLegal, 2016). Thus, judges possess the opportunity to adjust to the specific case during the proceedings.

A further advantage of the common law is its consistency. Through the doctrine of precedent, which is the main distinctive feature of the common law in many countries, the judicial system is capable of improving its work constantly. A principle of precedent provides stability and consistency throughout the legal system as a whole. It implements an opportunity to participators in the trials to ensure the correctness of decision-making on the part of the judges, in the absence of prejudice to his/her hand, and in the absence of arbitrary or irresponsible decisions (Investopedia, 2016). Moreover, it is also appropriate to recall that the doctrine involves the development of precedents only by senior judges and in the supreme legislative authority. Such approach not only improves the overall efficiency of refereeing but also has a positive impact on the authority of judges along with developing their professional skills.

Adaptability of the common law can also be considered as its advantage. As already mentioned, the common law implies a change of legislation focusing on the specific legal case considered. This leads to the fact that the judicial system is more flexible and adaptive. Most modern countries that use the legal doctrine of precedent provide an opportunity to challenge a precedent or to postpone it until the next court hearing (TransLegal, 2016). In addition, legal precedent can be replaced by a new one with the purpose of specifying, improving the efficiency of the court session and advancing the results of the hearing as well. In other words, due to the common law, judges have an excellent opportunity to change the legislation.

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Most lawyers also argue that one of the major advantages of the common law is its speed. Through the use of common law only during hearings and trials, it has the ability to respond to the legal facts as quickly as possible. As it is admitted, the legal system is based on a parliamentary law that is not able to take into account changes in society, people’s expectations, social values, and so on (Ontario Justice Education Network, 2013). Parliament will need several months or even several years to change the concrete law, focusing on the alternations in society. Due to the common law, judges are able to do it in a matter of days or even a few hours. Moreover, the judges also have the power to reform the legislation much faster due to the absence of any restrictions on the part of politicians.

It is possible to consider the advantage of the political independence separately. Parliamentary laws are strongly influenced by party politics, ideology, political intentions and other external factors. In turn, the courts and judges bypass some limitations, being independent of the above factors. Due to this independence, judges are able to execute legal reforms and avoid paying attention to the opinions of the political representatives (TransLegal, 2016). This also applies to those cases that may be associated with dubious intentions of the court. In other words, the judge can change the law, even if these changes will cause resonance in society, disrupt the government’s work, or affect any state system in some way. For example, three states have legalized abortion based solely on the common law, while the representatives of the Parliament strongly opposed the signing of this act.

Finally, the last main advantage of the common law is its equity. This pro is a kind of symbiosis of all the above advantages. Due to its specificity, adaptability, consistency, speed and independence, the common law provides equal rights to all people, regardless of precedent under consideration. Because of its nature, Parliament legislation is not able to arrange the same rights to the full because it is too superficial and do not take into account the factors of various kinds that may be relevant to the case (Ontario Justice Education Network, 2013). In turn, the doctrine of precedent means that all people have equal rights but, at the same time, judges have the opportunity to consider some factors that may influence the decision.

To summarize, it should be said the following. Common law has several important advantages that make it an indispensable field of legislation for modern society. The advantages of the common law lie in its specificity, the possibility to adjust to the unforeseen cases, consistency, adaptability, the speed of reaction to changes in society as well as independence from political trends. However, as already mentioned, all these benefits are reduced to the main one, which is equity. Through the doctrine of precedent, common law gives equal rights to the entire population. Common law is created and developed by a written expression of judges’ opinions about a particular offense and the trial. These views can then be used when considering the following offenses that are similar to the first one. Despite the obvious advantages of the common law, it also has its drawbacks, like most aspects of the law.

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