Explore BrainMass

Common Law

I would like a some ideas on the following topic:

"Explain the inherent problems in our system of common law?"

I'd like some insight into what are some major problems with a common law system. Thank you.

© BrainMass Inc. brainmass.com June 19, 2018, 12:55 am ad1c9bdddf

Solution Preview

1. "I'd like some insight into what are some major problems with a common law system. Thank you."

I have listed several problems inherent with a common law system, providing supporting documents and examples and other possible resource. This list is not meant to be all-inclusive.

1. Problem of Interpretation: For example, specific elements of the income tax act have their source in common law which lends to interpretation problems when they are applied in a civil law context (See http://www.ctf.ca/pdf/ctjpdf/2003ctj1_bruneau-e.pdf).

2. Common Law and Civil Law Canada has inherited two systems of law: civil law from the French and common law from the English, which creates problems of application as well as interpretation.

The common law, which developed in Great Britain after the Norman Conquest, was based on the decisions of judges in the royal courts. It is called judge-made law because it is a system of rules based on "precedent". Whenever a judge makes a decision that is to be legally enforced, this decision becomes a precedent: a rule that will guide judges in making subsequent decisions in similar cases. The common law is unique in the world because it cannot be found in any "code" or "legislation"; it exists only in past decisions. However, this also makes it flexible and adaptable to changing circumstances.

The tradition of civil law is quite different. It is based on Roman law, which was consolidated by the Roman Emperor Justinian. The law in ancient Rome was scattered about in many places: in books, in statutes, in proclamations. Justinian ordered his legal experts to put all the law into a single book to avoid confusion. Ever since, the civil law has been associated with a "civil code", containing almost all private law. For example, Quebec's Civil Code was first enacted in 1866, just before Confederation, and after periodic amendments, was recently revised. Like all civil codes, such as the Code Napoléon in France, it contains a comprehensive ...

Solution Summary

This solution explores and explains at least seven inherent problems in our system of common law. Examples and related resources are also provided.