The Role of the Judiciary in Developing Common Law - Essay Example

? COMMON LAW Institute COMMON LAW Explain the role of the judiciary in developing common law. Does this role assist with law making? Explain the law making process at the Westminster Parliament. Is it a satisfactory process? The English Law and its development can be traced back to to the customs of Anglo-Saxon society. The definition of customs or the roots of it are based upon how people lived and what their social structure of living was. Therefore, in England, laws at that point in time were all local customs which, even though were unwritten were considered to be rules. Customs were codified in the period of William the conqueror and this is said to be the basis of common law. With time, the king’s courts started to be used as a forum for dispute resolution of individuals, thus making it the common law and was subsequently said to be distinct from customs. However, the judges of that based their decisions on the customs and when a situation arose where no custom could be found new laws were formed. The procedure used at that point in time was by way of issuance of a writ, however, problems arose, as writs were fixed and only Parliament could approve a new writ, for a problem, which did not come under the existing writs. This caused a lot of problems thereby creating a rigid legal system and in lieu of this a practice of petitioning to the king was developed whereby individual cases were dealt with by the Chancellor. In turn a Court of Chancery was established whereby a new rule of ‘equity’ was established, which was contrary to the common law of the ordinary courts. 1 The Court of Chancery was effective in respect of rectifying injustices but the existence of a parallel system was a problem, one of the problems being the existence of two separate procedures and was bought to an end by the Judicature act 1873-1875 whereby a unified system was established. 2 Thus the important aspect of the English Legal System has been its development by way of precedents, which the courts followed by way of the hierarchy of the courts. Furthermore, the fact that the House of Lords did not till 1966 have the power to overrule its own decision has also played an important role in this respect. The hierarchy of the courts has played an important part in respect of development of the common law and therefore the doctrine of binding precedent has led to such development. 3 The decisions of the judges are based upon the ratio decidendi and obiter dictum. The ratio of a judgment is the binding decision and the reasons for deciding, however, obiter dicta are the things that have been said by the way.4 The advantages of the hierarchy of the courts and judicial precedent is the consistency of decisions, certainty of decisions, efficiency of time and last but not the least flexibility of judges to mould common law.5 The disadvantages can be uncertainty by stare decisis, fixity by way of unjust precedent and unconstitutionality in respect of separation of powers.6 Thus the judges have played an important role in respect of developing the common law as can be seen by the historical developments. The judges now also play an important role by way of statutory interpretation. The next issue that would be looked into is the law making process of the Westminster Parliament and whether or not it’s effective. The Houses of Parliament are House of Commons and House of Lords. The laws of Parliament also known as Acts of Parliament are also called statutes or legislation. These acts can originate via party manifestos; national emergency, crisis or new development; Royal Commissions; the Law Commission; or Private Members’ Bills.7 There are different types of Bills and these can be classified as Private Bills; Private Members’ Bills; or Public Bills. Public Bills are the common form of bills introduction of which is usually done by a Government minister. This is the most common type of Bill. Public Bills deals with matters which affects the public generally. As far as Private Members’ Bill is concerned, it also relates to the general public and is introduced by a member of parliament not a minister. This bill is a type of Public Bill. Private Bills are those bills which have an effect on a small number of people and the promotion of the bill is by the concerned group and so does not affect the public as a whole.8 Before introduction of the Bill into the Parliament, the relevant Bill is drafted by parliamentary draftsmen and then scrutinized by the relevant department of the government. The department may issue a Green Paper and seek opinions as well as comments from the organizations that have been affected. The comments may be scrutinized and sent to the relevant minister. Subsequently a White Paper would be issued whereby the proposals that would be stipulated in the Bill would be outlined.9 In order to make the Bill a law, both the Houses would have to approve the Bill so as to make it an Act and so the Bills can start from either of the House except for the Finance Bill which would start from the House of Commons. 10 The different stages that a Bill goes through are the first reading, whereby the title of the bill is read out along with prints of the Bill and a vote as whether the House wants to consider the Bill to the next stage. In short this allows the MPs to be aware of the fact that the Bill would be discussed upon. In the second reading the Minister explains the purpose of the Bill and debates on general principles enclosed in the Bill is undertaken by the MPs. This is the stage where opinions by public are also voiced. At the end of the second stage a vote is taken whereby the majority has to be in favour for the Bill to progress any further. The next stage is the Committee stage whereby each clause of Bill is scrutinized and amendments made by the Committee which consists of MPs of different political parties. The next step is that of the Report Stage whereby if amendments made at the Committee Stage are reviewed, debated, accepted or rejected with the possibility of further amendments. The final stage in the House of Commons is the Third Stage which is mere formality and debates would occur only if six MPs request. 11 If the Bill is introduced in the House of Commons, then the exact procedure referred above is repeated in the House of Lords. If the House of Lords is against a Bill it is reverted back to the House of Commons and subsequently becomes law if the Commons passes the same for the second time. This is mainly due to the non elected nature of the House of Lords. The Bill finally receives Royal Assent and becomes an Act of Parliament.12 The procedure used in the Westminster Parliament is a mixture of elected and non elected representative which allows for strict evaluation and furthermore at the various stages allows for minority to vote and debate as well. However, the bypass of House of Lords and the procedure which allows for the House of Commons to make it a law on its own motion is much criticized, however, the justification of non-elected House of Lords is sufficient and can defy such criticisms. Therefore it can, without any hesitation be said that the law making in the Westminster Parliament is effective.13 Read More