Explain the drawbacks of the common law system in England and Wales.
‘Common law’ originated in England in the 11th century. Today in the United States of America, some common law principles from the original English Law are being applied.Alongside it is the branching body of Common Law which is in the process of being set as a part of stare decisis which itself is an abbreviation of the Latin phrase ‘stare decisis et non quieta movere’ which translates as ‘to stand by decisions and not to disturb settled matters’, whereby the judicial systems decisions and interpretation of statutory law provisions by judges, are becoming a part of the common law.
Judges too do look to these decisions as a guideline, reference or as a necessary precedent to follow, whilst making their own decisions.Although advantages of the system have been significant in England and Wales, drawbacks of the system gradually came on par. As these decisions are based on past cases, predictability of the outcome increased and people are more exposed to what should be expected, however so, with the element of predictability, absurdity on deciding cases may occur.
In referring to a decided case, if there appears to be no change and the decision is followed again by a judge, a bad decision will eventually be perpetuated.And considering common law systems have been following precedents as a base, changes takes a long time to happen. In the meantime, a bad decision from a past case continues to be upheld. It became a major criticism of common law systems that it can be hard to locate the relevant principles due to the available volume of material. Common law which was based on the principle of binding precedent meant that judges must follow precedent even if they disagree with it.Judges too were not able to distinguish essentially similar cases although they were on grounds decision made would be inappropriate.
Lord Denning too criticised the doctrine to stand by what has been decided by saying, “if lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling down about them. Just as the scientist seeks for truth, so the lawyer should seek for justice.Just as the scientist takes his instances and from them builds up his general propositions, so the lawyer should take his precedents and from them build up his general principles. Just as the propositions of the scientist fail to be modified when shown not to fit all instances, or even discarded when shown in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice. , which in other words meant accepting the decisions of old law leads to unfairness and injustice. Furthermore, when precedent appears absent the common law legal system will be bound to face difficulties in making judgements. Difficulties will arise and flood various parties which include judges and those with intention to claim justice will be at lost with the unavailability of a decided precedent to refer to.
This has been said on certain occasion to lead to a high degree of unpredictability based on illogical distinctions.