Evolution_of_Common_Law

Principle of Equity Equity, the body of law that supplements the common law and corrects injustices by judging each case on its merits and applying principles of fairness. In the 15th Century, citizens brought petitions to the king claiming that the common law courts had made an unjust decision in their case. The Chancellor was subsequently appointed to deal with the petitions. The Chancellor was a priest, as well as a judge and therefore did not base his or her decision on precedent; but Christian beliefs. Equity is a body of law developed to deal with the injustices in the common law and was established to handle the petitions. The Court of Chancery, a court of equity, looked at all the features of each case and decided what was fair and just in each particular circumstance. The moral principles on which equitable decisions were based were called the rules of equity. Although the systems of common law and equity co-exist agreeably, there are conflicts that arise from time to time. In the 17th Century, dispute between a Chancellor and a Chief Justice had arisen, King James I had to step in and resolve the situation. After discussions, it was concluded that whenever common law and equity conflicted, equity would prevail. In the 1870s, the British Parliament passed legislation combining the courts of common law and courts of equity, allowing judges to apply both the rules of common law or equity in a case. Australia followed with a similar legislation. Role of precedent Precedent, as defined by dictionary.com is “a legal decision or form of proceeding serving as an authoritative rule or pattern in future similar or analogous cases. To better analysis the role of precedent we shall look at its advantages and disadvantages. Firstly the advantages: Certainty: To decide a case as you think might be right without any regard to principles laid down in previous similar cases would only result in a completely uncertain law In which no citizen would know his rights or liabilities until they knew what the judge’s decision and could guess what the judge would take on consideration of the matter. However, it is necessary for any system of law to have a degree of flexibility. Therefore, a balance for certainty and flexibility is always needed in any case. Growth: The system allows for new rules to be established and old rules to adapt to meet new circumstances and the changing needs of society. When a precedent is considered to be particularly valuable its scope can be extended in later cases: conversely. Practically: The rules of English case-law do not derive from a particular theory of law, and do not attempt to deal with hypothetical circumstances. They are the result of the consideration of real situations which have come before the courts The disadvantages: The biggest disadvantage that precedent creates is the slowness of growth and rigidity. The system depends on litigation for rules to emerge. As litigation tends to be slow and expensive the body of law cannot grow quickly enough to meet modern needs. Bad decisions are perpetuated since lower courts must follow higher courts. There are so many cases that it is hard for judges to find relevant cases and the reasoning may not be clear. Adversarial System The contemporary adversary system has gradually evolved over several hundred years. Early English jury trials were unstructured proceedings in which the judge will act as a prosecutor as well as fact finder. Criminal defendants were not allowed to have counsel, call witnesses or conduct cross-examination. All types of evidence were allowed, and juries, were highly influenced by the judge's remarks and instructions. In fact, before 1670, jurors could be fined or jailed for refusing to follow a judge's directions. In the late 1600s, juries took a more neutral stance. In the adversary system, the parties to a dispute or their advocates square off against each other and assume roles that are strictly separate and distinct from that of the decision maker, usually a judge or jury. The decision maker is expected to be objective and free from bias. Rooted in the ideals of the American Revolution, the modern adversary system reflects the conviction that everyone is entitled to a day in court before a free, impartial, and independent judge. Adversary theory holds that requiring each side to develop and present its own proofs and arguments is the surest way for the judge or jury to resolve the conflict. Parliament in legislative process Parliament plays an important role in the legislative process in designing, debating and amending bills to become laws. As a parliament, the members must be able interpret what society needs to be able to pass the laws that solve the issue. Through the use of a bicameral parliament allows the bills to be fair and just. Delegated Legislations Delegated legislation is legislation made by non-parliamentary bodies. It involved ‘les important’ laws that parliament does not have time to draft, consider and pass, and so delegate the responsibility to ‘subordinate’ bodies, such as government departments or local councils. Types of delegated legislation include: 1. Regulations- laws made by the Governor-General, state Governors or members of the Executive Council 2. Rules – legislation made for the government departments, usually by the department involved. 3. By-laws – laws made by local councils which are restricted to the area governed by that council Delegated Legislation is needed because it plays an important part in the smooth running of Parliament. Parliament cannot cope with the demand for new laws, and so delegating the responsibility to another body takes the pressure off Parliament and allows the act to be passed faster, as it does not have to travel through the system. Also, this type of legislation can be more subject specific, using technical knowledge from qualified individuals, creating a more thorough, detailed and smoother running piece of legislation. Delegated legislation can also be put into place if problems arise with existing legislation. Legislative Process The legislative process is a very complicated and thorough process that takes time, as laws introduced would be hard to amend. To therefore allow a fair and just law to be introduced the bill must go through various steps. To assess the effectiveness in the process of legislation is to break down the steps in which a bill is passes. The member who wishes to propose the new law or legislative amendment introduces the bill to the House. This is known as the first reading. Only the title of the bill is read at the first reading, and copies are distributed for members of parliament to read. In the second stage, known as the second reading, the member who introduced the bill explains the purpose of, and reasoning for, the proposed law. At this stage, members of the House may ask for further explanation as to the effect of the bill, its costs and the administrative arrangements for the proposed law. Amendments to the bill can also be proposed at this stage. The members then vote on the bill, and if it is passed it proceeds to the third reading. During this period the bill may take weeks as there are other bills to be debated on, and any amendments must be made to then adds further delays to a bill possibly taking a couple of weeks, During the third reading the house is asked to vote on the bill. Once the bill is passed by the house in which it was introduced, it moves to the other house for consideration. Any amendments which have been made appear in the new version of the bill. Throughout the whole three readings there may be amendments made causing delays and therefore a bill to make finish the course through a house in parliament may take months. The progress of the bill in the other house In the other house, the bill goes through the three reading stages again. If the bill originates in the lower house and is amended by the upper house, the amendments then must be sent back to the House of Representatives for consideration. If the lower house does not agree to the amendments then the bill can be referred to the upper house, where the amendments can be reconsidered. This process is a bit longer as there now must be discussions to the amendments of the bill so that both houses of parliament agree on the bill. Once the bill has been passed by both houses it is presented to the Governor-General). It is the responsibility of the Governor to assent to the new law, which means giving the Queen's seal of approval. Once a bill has been sent to the Governor it is usually a formality that it be approved. The bill becomes law on the date of the Governor's assent unless it has a specific clause stating it will only start on a specified date. Once it is law, the bill becomes an act or a statute. In any case if the Governor-General does assent to the bill then the bill is sent back to the houses of parliament and then amended then sent to the other house of parliament to agree, which would add extra time to the introduction of the bill. Although the effectiveness in the time of the legislative process is slow, the end product or law in any case targets the exact problem to solve it within a certain amount of time and force from the law being enacted. For the law to become and effective law it must have the following characteristics: I. The people (society) should have knowledge of the law and its use; II. The people must accept the law; III. The law must not be inconsistent; IV. The meaning of the law must be clear; V. The law must be capable of being enforced. Bibliography http://www.peo.gov.au/teachers/parliamentary-lesson-plans/passing-bill-house-representatives.html http://www.parliament.tas.gov.au/tpl/Backg/LawsMade.htm http://www.parliament.uk/about/how/laws/delegated/ http://www.legalanswers.sl.nsw.gov.au/research/delegated1.cfm https://internal.shenton.wa.edu.au/society/atp10/characteristics%20of%20an%20effective%20law.pdf http://socyberty.com/law/role-of-doctrine-of-precedent-in-the-english-legal-system/ http://www.cambodiaconsulate.ch/english/investment/system/legal-system/index.html http://www.westerninformer.com/'p=2938 http://www.spanishpropertyco.com/Spanish%20legal%20system.html http://www.informationcentres.com.au/sharedFiles/regions/australia/act/canberra/8098_bfvi84l886.jpg