The Common Law

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As with any system, the common law system has its advantages and disadvantages. The three main arguments in favour of such a system is that it is fair, expedient and efficient. It is seen as being fair as the strict following of precedents in all cases means that all people are treated equally. It is expedient because basing decisions on precedent means that potential litigants have a good idea as to what to result to expect.

Finally, the existence of precedents means that the judicial process can be relatively fast as there is already a framework in place in which to base a ruling. The disadvantages include the perpetuation of bad rulings and the difficulties raised when there is no precedent for the case before the court.

The Nature of the Common Law — Melvin Aron Eisenberg | Harvard University Press

Once a bad decision has been made by a higher court, that decision will remain law until the same court, or a higher court, overrules the bad decision. Courts are reluctant to overrule their own decisions unless absolutely necessary, and so bad decisions can be upheld for a long time. That is true of bad precedents. However, a total lack of precedent can lead to many problems, especially where a court is essentially having to make new law where no previous law existed.

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Prior to the Norman Conquest of England in , there was no unitary, national legal system. Before the English legal system involved a mass of oral customary rules, which varied according to region. The law of the Jutes in the south of England, for example, was different from that of the Mercians in the middle of the country see map below. Each county had its own local court dispensing its own justice in accordance with local customs that varied from community to community and were enforced in often arbitrary fashion.

If the defendant's wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed. It began as customary law used in the King's court to settle disputes and conflicts which affected the monarch directly. After the Norman invasion there were still many different types of court apart from the royal court — the stannary tin mining courts of Devon and Cornwall, the courts of the royal hunting forests, for example — but principally, in potential rivalry with the royal court, were the feudal and manorial courts.

It was during Henry II's reign that the clerics in his court began specialising in legal business and acting in a judicial capacity.

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Clerics were part of the King's royal entourage. Judges of the realm went on regular journeys throughout the country bringing the King's justice to every citizen. Their aim was that there should be a common system of law throughout the land, hence the laws became known as the common law. The travelling judges formed a nucleus of judges with national jurisdiction who had no local roots.

They were thus much less susceptible to the corruption which had spoilt a similar attempt earlier in the twelfth century in which the royal judges had actually been based in the local communities. In time the decisions of the judges were written down. As the decisions of these courts came to be recorded and published, so the practice developed where past decisions precedents would be cited in argument before the courts and would be regarded as being of persuasive authority. These practices developed into the common law of England, the law which was available throughout the realm.

On the supply side, a rich body of literature on judicial decision-making and judicial attitudes casts doubt on the ability as well as the motivations of courts to bring about efficient precedent. Demand-side complications include interest group effects, plaintiff selection effects, information selection effects, settlement selection effects, and procedural factors.

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Keywords: common law efficiency , economics , judge-made law , judicial decision-making , judicial attitudes. Paul H. His main area of research is law and economics. Access to the complete content on Oxford Handbooks Online requires a subscription or purchase.

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