Common Law Jurisdictions - Assignment Example

Name Course Tutor Date Question 1 Common law is also referred to as precedent or case law. Its development is often by judges based on various courts’ decisions. They are opposed to the statutes that are adopted through a legislative process or other regulations emanating from an executive branch. In most cases common law system is a known to be a legal system that gives massive precedential weight to the common law. This is on certain principle. This principle states that that it is not fair to treat similar facts differently on two different occasions. In practice, common law systems are more complicated than any simplified system. Decisions brought forwards by the court are highly binding and they only bind during a specific jurisdiction. A third of the entire worlds’ population lives under common law jurisdictions. They also live in systems that are mixed with civil law. In the highest court, there are always proper and legitimate roles for all judges in creating and expanding common law. This is the only way on which the common law has been adapted into the vastly different society as compared to the century turn. Judges play a common law in the creation and expansion of common law. They come up with different judgments on different cases and this way it is evident on how common law can be adapted to a vastly different society. Common law varies from region to region. This hence allows for flexibility of cases. Common law is highly malleable and this is the reason why it can be changed to suit a specific society. Common law courts are not in any way bound by precedent. It can however reinterpret as well as revise the law without any form of legislative invention. This is often in order to adapt to social philosophy, legal philosophy and political philosophy. The second most crucial point is that common law evolves in a series of sufficient gradual steps (Soriano 2008). These steps work out all details in a manner that even in the coming decades, the law can be changed even in the strongest court of the land. The law can therefore change even substantially without any sharp break. This reduces any disruptive effects. Question 2 There are basic and noticeable differences between the common law and the civil law systems in terms of judges’ roles. Judges have roles under these two systems and one among these two achieves justice. Traditionally the identification of differences between civil law and common law systems was easy. Nowadays it is continually becoming extremely difficult to identify these differences. Common law judges rend to use a system known as an adversarial system. This is where two sides present their cases and then the end result is a neutral judge. In contrast, civil law systems during the inquisitorial system proceedings, an examining judge or magistrate serves two equal roles of developing evidence as well as arguments for the both sides. This happens during the ongoing investigation phase. Examination judge therefore presents a dossier that had details of his or her findings. This is forwarded to the bench president who will adjudicate on this case. The president of the case is not neutral and cannot be biased in any way. This is while conducting the trial after going through the dossier. Unlike during the case of common law systems, civil law systems are not an umpire. It is entitled to interview the witness directly and express all comments during the specific trial (Dobbins 2010). Proceedings in the inquisitorial system are mainly writing based. Most witnessed can give evidence in the investigation phase and this evidence can be contained in the dossier under police reports form. The accused can also put his or her case in an investigation phase. The accused can however change the written evidence during trial. If the accused pleads guilty or if the accused does not plead guilty then, there is always a need to conduct a trial. Unlike the adversarial system, the sentence and the convictions to be served can be released by the trial jury together with the trial bench president. This follows their common deliberation. The system that achieves justice the most is the common law courts. Using an adversarial system is more advantageous since both sides are allowed to present their cases and in return they get a neutral judge. This is unlike the other side where an examining magistrate plays a role of developing evidence as well as arguments of both sides without allowing the two sides a chance to present their cases verbally (Soriano 2008). Question 3 There doctrine of precedent renders judicial decisions in making mechanical processes. There is often little room left for judicial creativity at all. The precedent is also known as an authority. This is the principle or rule that is put to the establishment in a previous legal case. In most cases it binds the current case. It can also be persuasive for a specific tribunal or court during the decision of any subsequent cases with similar facts or issues. The general principle in all common law systems is the fact that all similar cases must be decided in order to give predictable or similar outcomes. The principle of precedent is that mechanism by which a goal is attained. The definition of a precedent in the Black Law Dictionary is almost similar. It defines this as a law rule put to the establishment for the first time by a specific court. This is for a particular case type and afterwards its decision is used in deciding future similar cases (Williams 2008). The reason why there is no room for any judicial creativity is the fact that the decisions used in making judgments are based on previous cases. This therefore makes it difficult for the judicial bench to make new decisions on the case at hand. There will be no evident creativity in ruling cases if judges have to refer to previous cases to make decisions on the present cases. Binding precedents lead to certainty, consistency, time-saving and preciseness. Despite these advantages this precedent opens the way for complexity, rigidity as well as illogical reasoning. The differences between previous and current cases can be small but then they may appear to be illogical in a way or another. All cases are different. It is difficult to find similar cases unless they have similar facts on the case. Such areas of law require reform. Question 4 There is no reason why a judge can be a potent activist lawmaker. There seems to be an evident limit to what they can do if only they can unshackle themselves from their precedents. There are merits of the precedent system. One of them is certainty. Precedent system ensures certainty. It creates certainty in the law and this means that solicitors and barristers can provide advice to clients on the case’s probable outcome. The second factor is fairness. Similar cases are treated in similar ways. This therefore enhances the interest of fairness and justice. The third aspect is time-saving. It saves court extra time since most of the existing cases already has existing solutions emanating from previous cases. The fourth factor is law development. Precedent system allows for the law to develop well alongside society. This case overturned a legal principle dating back to the centuries. The fifth factor is equity (Soriano 2008). Equity is a crucial characteristic of this system. Precedents are strictly followed in all cases. This means that people are treated equally. Same legal principles are always applied to everyone irrespective of their wealth, power or position in society. The seventh factor is expedient. All decisions are based on previous judgments. It is therefore more convenient to follow the entire process throughout. People understand and know well what to expect and as a result of this there is that existing element of predictability. This process is easier and practical since there are no fixed and lengthy situations. Efficiency is another decisive factor. Since there is already a judgment being passed this means that there is an existing basic framework. The judicial process is therefore faster. There is certain efficiency in the precedent system as compared to the procedure in any other system. Decisions will have a rooted and strong basis mainly because the decisions’ basis is on a precedent (Kim 2011). Question 5 Papathanasopoulos v Vacopoulos 2007 Court including single judge, full court or court of appeal The case was handled by a magistrate Brief statement or material facts The question for the case was if the wedding is off, is it right to return the ring? Andrew sued for his ring to be returned on the ground of the value of the ring. He wanted the ring to be returned since it cost him a lot of money buying it. Vicki had earlier on given back the ring but Andrew refused to stay with the ring since in his mind he purposefully wanted the engagement to be ongoing (Harten 2009). Procedural history Andre Vacopoulos was keeping company with Vicki Papathanasopoulos. On 6th August of 2005, during their engagement, they exchanged rings, the engagement ring which Andrew gave Vicki cost her cost around $15,250. Afterwards their relationship deteriorated. On 16th August 2005, the two of them were at Vicki’s parents’ home and Vicki gave the engagement ring back to Andrew on a claim that she did not want it and she called off the wedding. She removed that ring and then placed it on the coffee table but Andrew told her it was her gift and she could stay with it despite their breaking up. Vicki took the ring and put it in her wardrobe inside a box. Around September 29th Andrew called Vicki at work and told her he wanted her back. Vicki told her she had already made up her mind. Vicki telephoned her parents and asked them to throw out all the items and this included the box in which the engagement ring was (Harten 2009). Grounds for appeal and/or issues to be decided The magistrate decided that Andrew said ‘it is a gift, you can keep it’. The grounds for this issue were that Andrew was trying to keep his engagement going. The magistrate said that it was not a question of Andrew coming to pick up the ring. The ring stood out as a symbol of the ongoing relationship between these parties. If she was rejecting Andrew, this meant that she should have returned. Summary of court’s analysis of law If any woman receives a ring and refuses to marry the man, she must return it. If a man has refused to recognize any legal justification and refused to carry out the marriage promise then he cannot demand the ring to be given back. Andrew won in the Local Court Principle of law to be applied The law applied was the common law. Earlier decisions on marriage and engagement issues were used to bring judgment Description of how law was applied to the facts Law applied to the facts on the case based on the fact that Vicki should have returned the item. She was a bailee and therefore could have returned the item. Decision made by the court The court ruled in favor of Andrew. Vicki however appealed in the New South Wales Supreme Court. The judge ruled that when he left the ring, she should not have misplaced it. She had rejected the gift and therefore had no rights to claim it as a gift. She became a bailee of an item so long as she had possession of the item. When one is a bailee, there is no right to throw the item as rubbish and this applied mainly when the item is expensive. Any features of the case suggesting that it should be viewed in its social or cultural context There are no features of the case that suggest that it can be viewed in a social or cultural context. References Dobbins, J. C. (2010). Michigan Law Review. STRUCTURE AND PRECEDENT , 1453-1466. Harten, v. (2009). Review of European Administrative Law. National Judicial Autonomy , 135-153. Kim, P. T. (2011). Northwestern University Law Review. BEYOND PRINCIPAL-AGENT THEORIES: LAW AND THE JUDICIAL HIERARCHY , 535-575. Soriano, L. M. (2008). Ratio Juris. The Use of Precedents as Arguments of Authority, Arguments ab exemplo, and Arguments of Reason in Civil Law Systems , 1-90. Williams, C. (2008). Legaldate. The theory and practice of precedent. (cover story) , 1-4. References Read More