The characteristics of common law system in HONG KONG

Common law, system of law that prevails in England and in countries colonized by England. The name is derived from the medieval theory that the law administered by the king’s courts represented the common custom of the realm, as opposed to the custom of local jurisdiction that was applied in local or manorial courts. In its early development common law was largely a product of three English courts —King’s Bench, Exchequer, and the Court of Common Pleas—which competed successfully against other courts for jurisdiction and developed a distinctive body of doctrine.

The characteristics of common law system are: -There is not always a written constitution or codified laws; -Judicial decisions are binding – decisions of the highest court can generally only be overturned by that same court or through legislation; -Extensive freedom of contract – few provisions are implied into the contract by law (although provisions seeking to protect private consumers may be implied); -Generally, everything is permitted that is not expressly prohibited by law. The distinctive feature of common law is that it represents the law of the courts as expressed in judicial decisions.

The grounds for deciding cases are found in precedents provided by past decisions, as contrasted to the civil law system, which is based on statutes and prescribed texts. Besides the system of judicial precedents, other characteristics of common law are trial by jury and the doctrine of the supremacy of the law. Furthermore, this legal system is not as perfect as we thought to protect the rights of peoples. A common law system is generally less prescriptive than a civil law system.

A government may therefore wish to enshrine protections of its citizens in specific legislation related to the infrastructure program being contemplated. For example, it may wish to prohibit the service provider from cutting off the water or electricity supply of bad payers. This is not a good way to solve problem. In many cases, courts lack the time, resources and opportunity to fully consider changes to common law. New legislation may go through numerous inquiries, investigations, parliamentary committees, law reform bodies and consultation before it is drafted and introduced. In contrast, a judge or panel of judges have minimal time and resources at their disposal when forming common law decisions.

On the other hand, Common law can be overridden at any time by legislation. The parliament is the supreme law-making body and common law is inferior to laws made by the parliament. While this may be a disadvantage of common law, it is also a response to the point above (that common law is made undemocratically). That means the rights what we own before, it is not always protecting you. Last but not least, Common law system is lack of innovation and up-to-date. It cannot detect consumer preferences accurately.

Resources are misallocated as consumer demands are not satisfied by production. Over-staffing problems, poor product quality, lack of efficiency. 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. At the same time, once the rest of people who are not included in this protection, they may not be protected 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. Unlike the parliament, the courts can only change common law ex post facto (‘after the fact’). They cannot change the law of their own accord. Courts can only deal with cases which are brought before them. Laws and precedents may be obviously outdated and in need of reform – yet until relevant criminal charges are laid or relevant civil action is initiated, there is no opportunity for these laws and precedents to be changed.