SLIDE thuyết trình common law and its advantage over written law

TOPIC COMMON LAW and its advantage over written law Group 2: Hà Linh Chi Nguyễn Thị Thùy Linh Hà Phương Anh Lê Hồng Anh Star t Conten ts A Definition of common law and an overview of the legal system in common law countries The primary differences between common law and statutory law B Common law’s advantage over written law Definitio n COMMON LAW • Consists of the substantive law and procedural rules that are created by the judicial decisions made in the courts • Are favored by a number of jurisdictions such as the United Kingdom, the United States, Hong Australia, Kong, Zealand… Canada, India, New Wikimedia Commons Overvie w THE LEGAL SYSTEM IN COMMON LAW COUNTRIES • • Sources of law: Legislation, Case law/Precedent, and Customary law • Adversarial system: - The prosecution and defense compete against each other; the judge serves as a referee - Previous decision made by a higher court forms a precedent that will bind the lower courts Differenc es THE PRIMARY DIFFERENCES BETWEEN COMMON LAW AND STATUTORY LAW Common Law system Civil Law system Precedent is the essence Written law issued by the legislature prevails Advantag es COMMON LAW’S ADVANTAGE OVER WRITTEN LAW Written Law Common Law ADVANTAGE Common law is constantly adjusted and fine-tuned as new situations arise in real life while statutory law is too rigid to deal with all perspective cases and takes a long time to change and adapt Specificity Consistency Efficiency Advantage SPECIFICITY Common Law • Clarifies expands on, and implements legislation, making it easier to apply and adapt to reality • The role of judges is to examine specific facts for each case, interpret relevant legislation and administer the law in line with these findings Written Law • Complicates interpretation and gives rise to several interpretations • This requires some secondary legislation for detailed instructions and implementation for each code Advantage Common Law CONSISTENCY • Consistent and predictable • The guiding principle of the common law is that similar cases should receive similar treatment • Is a product of numerous stages of consultation and compromise between the views of different stakeholders • Parliament would never be able to anticipate all of the specific situations that arise in the future Written Law Advantage Common Law EFFICIENCY • Reacts and responds rapidly to community expectations • The judge will look at the most similar cases decided in the past to figure out how the relevant legal principles should be applied to the Written presentLaw circumstance • Takes a long time to change and adapt to the conditions and requirements of real life • The legislature must go through the entire legislative process again in order to pass the new law and repeal the old one ADVANTAGE Case law is great to research in order to understand the interpretation and application of laws There are almost a thousand years of case law that can be read, analyzed, and referenced when making a determination of what the right outcome of a case should be Advantage PRECEDENT • Precedents are earlier cases where judges have made legal rules • Consists of judge-made law that evolved over centuries, and interpretation of statutory law explaining how it applies to certain situations and what it means • Enables the judges to reshape law according to an effective requirement Advantage HISTORICAL DEVELOPMENT OF COMMON LAW 14 Oct 1066 1166 The official canon date of Common Law The starting year of the Common Law judicial model Advantage July 1189 22 April 1275 The formalization date of Common Law as the legal system of England The formal operational starting date of Common Law Advantage TYPICAL CASE Donoghue v Stevenson, 1932 In a case originating in Scotland, Mrs Donoghue was given a bottle of ginger beer which allegedly contained the decomposed remains of a snail She claimed to have suffered shock and gastroenteritis as a result But as she had not bought the drink herself, she had no contract on which to sue Nevertheless, the court extended the law of negligence to require reasonable care towards those likely to be affected by a person’s or company’s actions ADVANTAGE Judge-made law is often the product of thoughtfulness and learning rather than pure political will The judges are actually better than legislatures at making well-thought-out, workable laws that can be applied in cases and controversies Advantage THE PREPONDERANCE OF PRACTICALITY IN THE JUDGMENTS MADE BY JUDGES The judge’s political impartiality Extensive experience in the practice of law A less pragmatic and more theoretical approach Advantage JUDICIAL REVIEW Interpret law, declare those laws unconstitutional A quashing order Advantage SEPARATION BETWEEN FACTS AND LAW The jury decides on the facts of the case; the judge determines the law The court has investigative power, it may not be fair for an individual Conclusi on THANK YOU ALL FOR ATTENTION We'd be glad to answer any questions you may have! ... of common law and an overview of the legal system in common law countries The primary differences between common law and statutory law B Common law? ??s advantage over written law Definitio n COMMON. .. BETWEEN COMMON LAW AND STATUTORY LAW Common Law system Civil Law system Precedent is the essence Written law issued by the legislature prevails Advantag es COMMON LAW? ??S ADVANTAGE OVER WRITTEN LAW Written. .. Australia, Kong, Zealand… Canada, India, New Wikimedia Commons Overvie w THE LEGAL SYSTEM IN COMMON LAW COUNTRIES • • Sources of law: Legislation, Case law/ Precedent, and Customary law • Adversarial