Critically discuss the advantages of a common law system such as that in place in Victoria, as opposed to a "code" state. Introduction The need for an effective and efficient law system is always a debated issue within any society. These systems are selected on a notion that they will fulfil the role of societies needs. The argument over which system best suits these needs is constantly pushed towards that of a common law system.
The basis for selecting a law system is established to suit and work around the current criminal justice system. Many countries and states have taken on the view that codification, over a common law system, is the best system to suit their ever-growing needs. The need for courts to make our laws have generally worked well when dealing with issues as they arise, in contrast to that of parliament working on a total census of the population.
The aim of this essay is to discuss in great depth about the benefits and downfalls of the common law systems and the code law systems. While assessing these systems I intend to place comparisons between the issues of culture and societal needs. I will achieve the aim through a critical analysis that will include various examples of current law systems and how they are upheld within that society.
This will include Australian and International examples. I intend to compare the effectiveness and efficiencies that arise within each system and discuss which method is best suited for our ever-growing societal needs. Analysing a Common Law System Over time Common law systems have become widely used and greatly respected within many International jurisdictions. The basis of Australia's law however has mixed emotions, but Australia is predominantly known as a common law country.
2 Due to the common law system originating in England, Australia had adopted their legal system due to its close ties. The reflection of common law in Australia is shown through Victoria, New South Wales and South Australia. The need for such a system to be in place has proved to be very successful, over that of a code law system. 3 The basis of the system reflects societies cultural ideas, such as their values, beliefs, customs, traditions and the countries history.
Common law in perspective is judge made law, which basically follows and introduces customs and precedent, to which a judge makes all decisions. 5 Advantages of Common law The common law system, as seen in many nations, has proved to be very successful in providing a fair and just society. The use of Common Law has shown to be very popular due the concept of precedence, this notion has exhibited that all people are given a fair hearing and will be related to past cases and social change. 6 Due to vast similarities in Australian culture, cases heard in Victoria can use precedence from another state such as New South Wales or South Australia (dealing with common law).
This provides great diversity of decisions, while ensuring that all cases are given the same aspects of judgment. The need for such close relationships between all cases gives a broad perspective in fairness. 7 Therefore future cases that are similar in nature will be treated in the same respect as those before them. 8 The need for such a system has been widely accepted due to the diversity of decisions and the growth with social change. The binding notion of precedence is basically the stronghold of common law, as it ensures all persons are treated to a fair hearing.
This is also seen to be a great asset over civil law systems as it evolves with social change and cultural diversity. 10 Victoria adopted this system for that very reason, to ensure that all people are subjected to basically the same format as those before them. 11 This approach is given constant recognition for this quality aspect. Another characteristic that is seen to be very effective over the code system is that all decisions made are subject not to scholastic surmise. 12 This ensuring that it coincides with social change and difficulties that risen in shape with the current times.
The aspect of Common law in Victoria is vital in ensuring that it establishes a base of precedent and affiliation with customs, this moving our law making abilities forward with our ever growing social needs. Disadvantages of Common Law In some cases Common law can be seen in a different light, especially when the system can be promoted as somewhat rigid after a law is entrenched. Not always is our system so fluent as it is shown to be.
Some argue that our ever promising system can seem to be unyielding when dealing with situations that are dated, and also provides instances where judgments are used well out of context. 14 Does this mean that our system is ineffective when dealing with set precedent? In contrast to the code law system it is very similar in that it has set rules, but is not really seen to be a priority when trying to improve the current system. Some also see the system as incoherent as it has a great dependence on the context, situation, judge or society in which it is determined.
Therefore making decisions very difficult due to the vast complexities of the system. The common law system as a whole can be seen as somewhat annoying due to the sheer magnitude and intricacies involved within the system. 16 For this very reason many other jurisdictions use the code law system, as the time consumption for incorporating common law is phenomenal. Another basis for controversy is that when judges make decisions about issues involving new areas of technological advance, they have a tendency to look the other way when creating a possible precedence. 17 This is done to ensure they don't interfere with a developing area of an industry, which can indicate inconsistencies with rulings.
As we know common law has generally worked well for Victoria, but can be shown as a system with obvious flaws. The intent of the system has shown to be very good when dealing with issues as they arise, but we cannot look past the evident blemishes. Analysing a Code Law System When we look at a code law system we think of it as a one-minded approach to enforcing criminal law. It is often said that it is a system of the past and that's where it should stay. 19 Others see it as a system that holds a firm stance and keeps possible offenders at bay. 20 A code can be seen as a comprehensive system that draws statute and case law of a specific topic.
Over the years Australia has incorporated codification into some aspects of the criminal law. States that have incorporated this system include: Tasmania, Queensland Western Australia, and aspects of the Northern territories criminal law (These areas being those crime that are considered indictable). Like those named, France in 1810 and Germany in 1896 had also adopted their systems through the ideas of the civil code. 22 Advantages of Code Law In thought and method, codes are emergence's of the legal science that have been developed over the centuries.
After the French revolution a man by the name of Napoleon came to power and effectively established five codes being: the Civil Code, the Code of Civil procedure, the Commercial Code, the Code of Criminal procedure and the Penal Code, all coming under the title Code Napoleon. 24 This was scene for a new era of codification. Codes are seen to display characteristics of comprehensiveness, a high-level of generality, and inner cohesion. In the Common Law, on the other hand, statutes were seen as remedying a particular mischief as they did not provide a basis for reasoning by analogy.
The need for a law system to be simplistic is very much absent from that of a common law system, whereas there the code system is written in a form that is basically made for the common man with a basic intelligence. 26 This ensuring that the general public can be aware of the law and their rights within it. Another great asset that a Code law system has over a Common law system is the fact that it so easy to find a specific topic area. There are basically no other links to other areas unlike the Common law system, which expresses great difficulty with finding specifics about a criminal matter.
It cannot be expected that a person know the law and abide by it, if it is so hard to find and comprehend. Another graced aspect of codification being incorporated into criminal law is that it is democratically made and amended. 28 This insinuating that because of the close ties between the state and the citizens within the criminal law, it is seen as a must for the system to be democratically made. 29 Ensuring the link of citizens and the state are kept close. Disadvantages of Code Law The constant push for a better system will always solve one problem, but create another, as we will see with code law systems.
To often have we seen code law systems become outdated and become somewhat useless due to the inconsistencies that are shown through social change. In 1810, when code Napoleon was first introduced, it seemed to cover all aspects of the criminal law of that time. 30 But due to the vast advances in technology, the different array of cultures and the constantly changing social views, it seems that such a system could not take on such a demanding quota. We see ourselves thinking about why we would turn to such a stagnant system of law.
The other major aspect of a code law system that has caused a lot of controversy is that of the way the system is structured. This being how inflexible and firm the system has come across since the Napoleonic era. This codified systems attribute of sternness is shown to be more of a downfall than of positive characteristic. Although, it can be seen both ways. Conclusion Although the concept of Common law systems being better Code law systems is widely used, we cannot overlook the drawbacks of the Common law system and benefits of the Code law system. We see ourselves in two minds about the best structural approach for a jurisdiction.
The reason for a state choosing a system is unknown, but evolving cultures and advancing technology see us looking towards a more broad system. Despite seeing the two systems as equals in specific area's, we see an unfolding of a pattern with each system. One which ensures all are given the same justice and another which advances with the times promoting precedence with specifics. There is only one way in which to choose the best system, that being selecting a system that addresses and adapts to change. The issue over which system is best suited for our times will always be a heated debate, but it leaves us with an opportunity to advance with each system knowing that the other will always have it's disadvantages.
The issue is not whether a system treats a person justly, more so a system that can treat an issue as it arises. The need for Victoria's laws to be made by the courts, over the idea of merely parliament, has proven to be a great commodity within our justice system. There is no reason to suggest that the current system will ever be halted, as long as society advances Common law will always be seen as the superior system when dealing with criminal law.
1. Bronitt and McSherry, Principles of Criminal Law (LBC Publishing Services, NSW, 2001) 2. Cook, Creyke, Geddes and Holloway, Laying Down the Law (5th Ed, Butterworths, Australia, 2001) 3. Diekman, Chris, Legal Essentials: Understanding Australian Law (Oxford University Press, Melbourne, 1992) 4. Glendon, Gordon and Paolo, Comparative Legal Traditions In A Nutshell (2nd Ed, West Group, St. Paul, 1999) 5. Heilbronn, Latimer, Pagone and Neilson, Introducing the Law (6th Ed, NSW, 2002) 6. Kittichaisaree, Kriangsak , International Criminal Law, Oxford University Press, New York, 2001)