Table of Contents
1. What do you understand by common law?
2. What are some disadvantages and advantages of the common law system?
3. Take a case example where both statue law and common law were applied.
The term "common law" may refer to laws enacted in a previous decision in a case involving the same problem (case law) as the legal system or law. Canada follows a common legal system. Common law is part of the law which is derived from the judicial decisions of courts and comparable tribunals. In certain cases, if the parties do not be in agreement on the law, a common law court examines the previous decisions of the competent court and summarizes the ethics of the previous case valid to present events. If the same disagreement has been settled in the past, the court is generally forced to subject the argument imparted in the previous decision.
However, if the court subjects that the present dispute is essentially different from all preceding cases and the law are silent or hesitant on the matter, the judges have the power and duty to resolve the issue (both parties must win) and the judges do not agree with the law. The court issues a notice as a reason for this decision and these reasons have been combined with past decisions as a precedent for future judges and litigation. Also, Quebec in Canada is an island under the rule of law. The jurisdiction of civil law is distinguished from the common law by the role played by previous decisions. Common law has historical connections to the legal system of the United Kingdom and is used in past British colonies such as Canada, Australia, the United States, New Zealand, India, Malaysia, and Singapore (Simeon, 2019).
The common law extends, clarifies, and enforces the law. This law in Parliament is frequently wide and general, it subjects general guidance on the rule but not how it needs to work in some particular situations. The function of judges and general law is to verify the detailed information of each case, to understand the applicable law, and to conduct the law according to these results. This law can counter lawsuits, circumstances, and events that legislators did not expect or did. It is not possible for Parliament to make laws for each probable problem, condition, or action that arises in the world. Examining the law, it can expand the response to genuine situations. This law subject’s continuity but it also imparts change and flexibility in lawmaking. Examples can be questioned, disconnected, and replaced with new ones (Simeon, 2019).
Common law is imprudent but not proactive effective. Dissimilar to the Parliament, the court can only alter the common law for the previous term ("after the truth"). They cannot change the law according to them. The court can only hear cases brought before him. Precedents and laws are outmoded and need to be reformed - but unless pertinent crime charges are brought or civil action is taken, there is no room for change in these laws. Courts exist to manage justice and the development of common law is a secondary consequence, members of parliament are elected and accountable to the individuals - but judges are chosen by the judiciary. This reality criticizes the judges for their decision that they are not accountable to the people. They believe that the common law itself is not democratic. This opinion is often published in the media, especially during debates over sentencing (Jukier, 2019).
In the year 1887, the Supreme Court (Canada) had not granted to pay compensation for solatium doloris in the Canadian Pacific Railway Co. Vs. Robinson. This was a case where both statue law and common law were subjected. In context to the argument of Article 1056 of the Civil Code of Lower Canada was coding in context to the law of Canada based on Lord Campbell's law. The Supreme Court refused to pay recompense for the death of a loved one. Since the provision of the Code was made in the 1866 forecast after the application of Canadian law in Lower Canada and Upper Canada, the Court subjected that the rules need to be standardized application. Since it belongs to English descent, it had to be subjected in accordance with English law. Section 1056 could not be used to provide this type of compensation as there is no compensation for the same under English law (Justice.gc.ca, 2016).
The matter of solatium doloris was only imparted in the request to the Council (Privy) in case of obiter. The Privy Council felt to the code that it needs to be subjected to its provisos devoid of resorting to pre-existing laws. It was well-known that Article 1056 of the Lower Canada Civil Code was very dissimilar from the Canadian Constitution of 1859, which had the term, Lord Campbell. The Privy Council further learned that the mode in which Canadian law was applied was not consistent. The opportunity was dissimilar in the 2 provinces of Lower and Upper Canada. In context to Lower Canada, the limits of the provision of civil law were subjected to the class of individuals who have the right to conduct. In context to Upper Canada, he was unaware of law enforcement, creating a new law enforcement law to reduce the inertia of the common law judiciary. After few years, Privy Council restated to the comments of Robinson in Miller v. Grand Trunk Railway Co.
The obiter is appealing in several cases. It emphasizes the uniqueness of the Lower Canada Civil Code and allows dissimilar submission in context to the same rule depending on if it is a part of applicable rules in civil law. The succeeding decisions in context to the Supreme Court of Canada did not obtain the explanation made in the explanation of Article 1056 of the Privy Council. The court continues to enforce this rule set out in Robinson. Quebec's lower courts, however, show a tendency to recognize solatium doloris with a broader interpretation of the civil constitution (Justice.gc.ca, 2016).
Canadian Pacific Ry Co v. Robinson, (1887) 14 SCR 105, from: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13748/index.do [Retrieved On:12th May 2020]
Jukier, R. (2019). Good Faith in Contract: A Judicial Dialogue Between Common Law Canada and Québec.
Justice.gc.ca (2016), from: https://www.justice.gc.ca/eng/rp-pr/csj-sjc/harmonization/hfl-hlf/b3-f3/bf3c.html [Retrieved On:12th May 2020]
Robinson v. Grand Trunk Railway Co., (1913) 47 S.C.R. 622, from: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2977/index.do [Retrieved On: 12th May 2020]
Simeon, J. C. (2019). The Evolving Common Law Jurisprudence Combatting the Threat of Terrorism in the United Kingdom, United States, and Canada. Laws, 8(1), 5.
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