18.5 Common Law And Statute
by Doctor Mark Cooray (1995)

The common law method of adjudication, in the context of the doctrine of judicial precedent is fundamental to the protection of rights and the prevention of arbitrary determinations.

What Is "The Common Law"?
What is the common law? The word common law is used in many different contexts. The word common law is used in the present context to describe the body of legal principles and concepts which were evolved over many centuries by judges in the English courts of law. Common law became part of the law of Australia as a consequence of the settlement of Australia as a British colony.

The common law was influential in moulding both the area of and restrictions on freedom in England and those parts of the world which have the common law tradition as their legal foundation. A study of the history, development and modern undermining of the common law is crucial to an analysis of the democratic order, which it has helped to shape and underpin.

The common law is the product of long evolved social values which are judicially articulated and interpreted.

"Its roots strike deep into the soil of national ideas and institutions" (C K Allen, Law in the Making Oxford (1964) p 71).

These rights (it used to be argued) are ingrained in the national psyche and conduct and command respect.

The crucial importance of the common law has tended to be forgotten in recent times in the course of searching for ad hoc solutions to social problems. This tendency has been the result of the pursuit of particular goals by special interest groups in disregard of long term damage to the foundations of liberty. Even persons who recognise the importance of these rights in their general application sometimes urge departures in relation to matters of particular concern to them.

One of the greatest virtues of the common law system is to be found in its capacity to balance the individual interests in liberty with the common concerns and interests of the community.

In the modern era, there is a growing belief that the solutions to these problems can be sought by deliberate and calculated reform of the law through legislation. Reforms are formulated by law reform agencies and by political and bureaucratic authorities through processes of abstract rationalisation or imperfect empirical investigation, sometimes based on Marxist and neo-socialist ideological assumptions. The evolved law is thereby fractured and reshaped with unpredictable consequences. Another consequence of this method is that it tends to remove questions of public morality from the community itself. It results in the imposition of restrictions on liberty which are inadequately founded on public perceptions. Imperfect rationalism and empiricism are poor substitutes for the accumulated experience of the community, enshrined in the common law. The common law experience reflects the wisdom and even the follies of our civilization. However, it represents an evolved public morality which is the soundest basis for the formulation of legal precepts (subject to comments below relating to modernisation and legislation).

The Virtues Of The Common Law
The common law method, as compared to reformist legislative change, results in gradual change through the determination of individual disputes in which parties present contending arguments regarding just conduct. In deciding these disputes the courts draw upon precedents embodying the public morality which have been developed over the ages. These principles, in the words of Charles Francis, QC, in an unpublished speech "... represent the collective legal wisdom distilled over many centuries from the finest legal minds in the English speaking world for the express purpose of defining, protecting and enforcing human rights and obligations". Through the process of disputation, debate and impartial adjudication, the common law reconciles conflicting interests and develops the necessary constraints on the liberty of the subject.

The question may be asked; what makes the courts superior to politicians, bureaucrats and academics as custodians of individual freedom and public interest? Three reasons may be given. One is the impartiality and competence which is associated with courts functioning in the common law tradition. Despite frequent attacks and attempts to denigrate these qualities they remain real in the public eye. Public confidence in the judicial system, as demonstrated by surveys, (notwithstanding academic and political attacks) surpasses its confidence in political institutions, the bureaucracy, the media and academia. This confidence itself encourages and promotes the impartiality and dedication of the judiciary. A second factor is that unlike political institutions, the common law courts have no licence to commit arbitrary acts. Judicial discretions, unlike political discretions, are strictly limited to the application or adjustment of already established norms and standards. Thus there are inbuilt restraints in the judicial method which ensure a greater degree of certainty and fairness. A third factor is that the common law itself is a product of reasoned disputation where individual rights and duties are claimed and evaluated. No comparable process obtains in the political system in which ideological considerations often prevail and aggressive pressure groups exercise influence without regard to reason, justice or community values.

Common Law Needs To Be Supplemented By Legislation
Legislation in a modern technological age is necessary and useful. The common law method, like all human creations, is imperfect. It can usefully be supplemented by legislative action. But modernisation is not the same as social engineering. Under the guise of modernism, social activists are implementing their policies. The complaint regarding the modern method is that the common law is being smothered out of existence and legislation has become the primary source of social regulation. Legislators and bureaucrats claiming a superior wisdom indulge in structuring and ordering society in disregard of the community consciousness and values. It is this kind of legislative activism that leads to progressive erosion of human rights under the colour of safeguarding public interests. In contrast, the common law method assimilates the public morality into legal principles through the direct participation of citizens in the assertion of their individual rights on the basis of the customary ways of the community. The restrictions on individual liberty that evolve from this process have a greater relationship to the needs of the people as perceived by the people themselves.

The common law restrictions on freedom are expressed in the form of criminal offences, civil wrongs and liabilities arising out of the sanctity of contract. When these restrictions are examined it is not difficult to see their relationship to the public morality and in particular to the religious beliefs and values of the community. For example, criminal offences such as murder, rape, theft and fraud are acts universally condemned by the ethical systems of all major religions. Such offences constitute the core of the restrictions on human conduct recognised by civilised societies. Even in the absence of major religious influence, civilised communities consider such acts reprehensible and impermissible as they jeopardise human survival and well-being.

Each common law crime thus protected an institution or value which was considered to be of fundamental importance. Offences such as murder, rape and assault protected personal physical integrity. Crimes such as larceny, fraud and cheating protected private property.

Apart from crimes which were considered as prejudicial to the community as a whole, the common law developed other restraints against causing harm to person, property and reputation by recognising numerous torts or civil wrongs. These as well as actions based on contract enabled individuals to sue for damages. Together they formed a corpus of rules determining the boundaries of permissible and impermissible conduct. The development of the common law of torts in more recent times demonstrates the dynamism of the system to accommodate the needs of changing social and economic conditions. Employers' liability to provide working conditions and training adequate for the safety of workers is one example. The application of the law of nuisance to owners of property which through neglect causes harm to others is another example.

One of the problems of applying the common law method in the modern era is that circumstances posing dangers to society can arise suddenly and the common law response (relying as it does on appropriate litigation coming before courts) may not be sufficiently rapid to avert harm. In these circumstances it becomes necessary to create safeguards by legislative action. In such situations, although the common law may not provide an immediate remedy, its basic approach will provide valuable guidance for determining the justifiability and extent of proposed restrictions. The common law approach gives predominance to community perceptions and values (including moral and religious sensibilities) rather than to the views of lobbyists and political activists. What is important in such an approach is objectivity and impartiality. In other words, the modern legislator who contemplates placing a restriction on liberty, should approximate his role closer to that of the judge than to that of an ideologue or a person with received wisdom to effect far reaching changes in the public interest. It is only by such means that we can determine the perceptions and priorities of the community.

The common law approach is also characterised by the importance attached to personal freedom, the freedom of speech and expression and the freedom to hold and enjoy property. The precedence given to these rights flows from their indispensability for the enjoyment of all other rights and liberties.

In the common law system, fairness and objectivity in the resolution of disputes is sought to be ensured by time tested procedural and evidentiary rules. Thus a person is presumed innocent until proven guilty. There are rules for the exclusion of doubtful evidence and rules that guarantee a fair hearing. There are no comparable safeguards in the legislative method of determining rights and duties. As such, the onus on legislators embarking on restrictive schemes is even greater.

The Critics Of The Common Law
The critics of the common law are never tired of pointing out the problems that have arisen as a consequence of common law decisions. In a world of imperfect human beings reacting with each other in an uncertain and accident prone environment, problems are inevitable. Yet the strength of the common law is appreciated if it is compared to other legal systems of the past and the present. If comparative studies are conducted, the record of the common law will appear infinitely superior to that of every other legal system the world has known except the civil law tradition.

The judiciary is not totally impartial and value-neutral. But impartiality is an ideal which the common law judiciary strive towards, even if imperfectly. In this context, is the solution for a lack of impartiality and the human failings, to abandon any pretence of objectivity and move to a position where rights are adjudicated upon by people who may be biased and who are freed from all the common law restrictions which aim to control and limit bias and arbitrary action? Is the establishment of tribunals with social activist and biased judges or administrators an improvement? The present trends do not inspire. Can it be said that modern activist-dominated tribunals (eg the Human Rights Commission) will be an improvement on the traditional court in which the presumption of innocence and rules of evidence and procedure are important?

Although common law courts have not been value neutral, they have tended to express the prevalent values of the community. This is consistent with the idea that the law should be the emanation of the popular consciousness and not the arbitrary will of an individual or group.

The common law is subservient to laws passed by Parliament. In Australia as in England, the common law has been overlaid by statute and exists today in an emasculated form. The common law therefore, does not, as it once did, offer protection for individuals, against the over reaching and ever-expanding power of government.

In England, the common law safeguards have had no discernible effect on the rise of Parliamentary supremacy, the growth of the welfare state and the expansion of government. In fact, just as much as eighteenth and nineteenth century English government inspired constitutionalism, twentieth century English government has set precedents for expanding the powers of government at the expense of constitutional limitations. This has happened in Australia too.

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