The Need of Implementation the Common Law in Modern Society
The common law system is recognized as an older; as well as proficient technique in quite a few countries helping to make the system of law a better one. In Canada, common law is used and based on the judge’s past decisions rather than written law (Department of Justice, 2017). The common law system takes past decisions made by judges and uses them in new situations that are similar to the original event – otherwise known as the term “stare decisis,” which means to “stand decided” (Bowal & Syed, 2019). This can also be viewed as setting precedents; which allows for similar standards if broken, to have the same extent of punishments depending on the severity of the law(s) broken (Department of Justice, 2017). The purpose of doing so is to allow fairness to everyone; as well as to also keep the courts running smoothly and efficiently. The common law system is effective for various reasons including the fact that it is flexible and adjusts to society’s values, ensures fair decisions are made and does not violate people’s basic human rights stated in the Charter of Rights and Freedoms.
Common laws are always changing and adjusting to better suit society’s needs due to judges announcing new legal doctrines or changing old ones (Department of Justice, 2017). This is extremely important given that society is constantly changing. The law evolves when judges add to a precedent rather than challenge it (Gennaioli & Shleifer, 2007). This allows for decisions to be made based on the previous set precedent as well as the new one, allowing more flexibility when it comes to decision making. This makes common law an effective system because it allows for leeway when making a judicial decision. These reasons show the flexibility of the common law system and why the system needs to be able to evolve to better fit the needs of a continuously changing society.
Secondly, the common law system ensures fairness in each judicial outcome. The use of precedents makes the entire law system, including common law, a fair one. Precedents allow for crimes that fall into the same category to receive similar punishments like previous cases. This means that common law protects individuals from receiving excessive or unfair punishments by going off of previous decisions of similar cases to make sure that the punishment or outcome is consistent (The Canadian Legal System, 2019). The Supreme Court of Canada being the highest level of court in Canada sets a standard forcing all other levels of court to obey its decisions. This is where the term “stare decisis” comes into play using common laws as precedents from the highest courts in the country to make fair decisions (Bowal & Syed, 2017). For example, a judge could be assessing a particular case looking at ….. And the use of a previous precedent would be better for the final outcome if it was also modified to keep up to date with society’s changing needs.
Furthermore, The Charter of Rights and Freedoms is very much involved with the common law system. Just like any other law, no common laws can be used against an individual if it violates their basic human rights (The Canadian Legal System, 2019). This is important as it ensures that even as the laws evolve and change, people’s rights are still protected. The Charter applies to common law cases when the court makes an order on its motion (Department of Justice, 2019). This means that when a court decides on its own without any input, the Charter will protect the individual’s rights in that circumstance. This is important because it means that no one will receive an unfair punishment that violates the person’s basic human rights as stated in the Charter of Rights and Freedoms. This demonstrates how the Charter of Rights and Freedoms significantly impacts the way the common law system operates in a positive manner.
In conclusion, the common law system is effective bettering Canada’s court systems. The system has been used for a long time in many other countries besides Canada for a variety of reasons. A system that recognizes that regular change is needed for success is very important and valued within nations. This leads to the fact that common law is flexible in that it is constantly being modified and adjusted to better suit and reflect societal values. Also, it ensures that the decisions and outcomes for similar cases are the same which ensures that every outcome is fair. Lastly, common law follows the Charter of Rights and Freedoms, meaning that no laws can be used to violate an individual’s human rights. For these reasons, the common law system is very beneficial to our changing society and is overall a very effective system in Canada.
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