What are the advantages and disadvantages of common law system?

Answer 1

The term "common law" has it's origins in England in the 11th century. Even today in the US, some common law principles from the original English law are applicable while alongside it is the growing body of common law which is being set as a part of stare decisis i.e. the judicial systems decisions and interpretation of statutory law provisions by judges, are becoming a part of the common law. Other judges look to these decisions as a guideline or as a necessary precedent to follow, while making their own decisions. There are both advantages and disadvantages to a legal system based on common law or precedent-based. Advantages: i) Equity: One of the arguments in favor of a common law system is that equity is a characteristic of this system. As the precedents are followed in all cases, all people are treated equally. The same legal principles are applied to all people irrespective of their position or wealth or power, which may be a factor in some countries. So this system of following precedents which already been set previously tends to bring equity and fairness in its wake. ii) Expedient: As these decisions are based on previous judgments, it's more convenient to follow this process through. People know what to expect; there is an element of predictability. The process is easier and more practical as there are no fixed, lengthy rules but real situations that have already been resolved. iii) Efficient: As there is already a basis on which the judgment will be passed, a basic framework so to say, the judicial process becomes so much faster. There is certain efficiency in the process as compared to what the procedure would be like in comparison with a system that did not follow the precedent based system. Plus these decisions are based on a precedent and so have a stronger basis. Disadvantages: i) Perpetuation of bad decisions: There is the drawback that once a decision has been made, if there is no change and the same decision is followed again, a bad decision will be perpetuated. And common law systems are all about following precedents so changes take a long time to happen. In the meantime, a bad decision continues to be upheld. ii) Difficulties when precedent is absent: Judgments are made on the basis of precedent and when there is no precedent the system comes to a standstill. Many problems arise and people are "lost" . iii) Need for records: Because these precedents are to be followed by all other courts or in many cases, lengthy, detailed records have to be maintained. And to make easy the accessing of these cases and previous decisions, uniform indexing methods have to be created and followed diligently.