Common Laws As Judge Made Law Law Essay

2379 words (10 pages) Essay

1st Jan 1970 Law Reference this

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The birth of common law was acknowledged in the region of Great Britain [1] and that even before and after the Norman Conquest in 1066 these legal system was already developed by the English [2] . During the early days, the actual law of the Great Britain’s territories doesn’t have any written document but instead it was passed down verbally from generation to generation due to their customs. For this reason, Common law was also called man-made law. However, for the period of the ruling of the Normans, a Feudal System of law was recognised resulting in the division of the country having its own Norman Lord in each land and each ruler have their own court where the hearing of cases are done. Nevertheless in complicated cases people still have to go the King’s Court or Curia Regis [3] , where the King have selected officials from associates of the church and chosen barons acting as judges or law makers.

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As time pass by, certain changes led to the practice of sending the judges into the country side and this was during the period of King Henry II (1154-89) [4] . As a result, plea rolls [5] was developed which is a record of all past cases including the important facts, judgment given and the reasons behind the decision of every dispute. Judges were also assisted in this recording practice. Ever since then the judges use the same decision from that records, everywhere when the same case is encountered and applied it uniformly across the country even though it clashes to the local customs in promoting- Common Law.

Judge-made law is the foundation of common law where the doctrine of precedent [6] aroused. Doctrine of precedent requires that whatever decision is made by the higher courts, lower courts must follow and make the same decision in the same cases and that’s why common law is also called precedent law and precedent means using the same case from before as an model or guide . It was instituted to create uniformity and consistency in giving decisions in any encountered case so as to promote equal reasoning and making it more predictable on what is going to be the outcome.

There are also two kinds of precedent:

Binding [7] – A precedent is binding on the basis of the hierarchy of the courts where the lower courts are bind to apply same decision in the relevant case based on the decision of a higher court before hand. For example the Supreme Court already made a resolution; the lower local courts must honour and recognise the said declaration.

Persuasive [8] – A precedent is persuasive, meaning it should be considered but not mandatory to be followed by the same level of hierarchy in courts but not higher, the decisions allows not to be binding on the judgment of the case. For example the low court of New South Wales is not bind by the precedent of the low court in Queensland.

NATURAL JUSTICE

Under Common law certain principles are established to create natural justice (procedural fairness) [9] during hearing. It is to be strictly followed by tribunals and courts.

Each party must be given the same chance to present their own cases.

The assigned judge must be fair in giving decisions and does not think of his own personal benefits of the outcome.

The verdict must be based only on the given evidence to the decision maker.

SHARI’AH LAW AS ALLAH’S LAW

Islamic law (Shari’ah Law) originated from the Arab Peninsula and Mesopotamia in the 7th century AD [10] . From there it expanded to Central Asia and Middle East countries. Basically Shari’ah Law are based on religious behaviour of an individual and these law came from God (Allah), so as understood it is divine in nature and that the continuity of Shari’ah law is secured by the Mufti- as the Author Jurist [11] meaning the judge and law professor who gives the Fatwa [12] , an authorised answer to the legal questions, also the notaries, the court witnesses and the decision maker as well himself that make it possible to conduct a hearing under this system.

“The idea . . . implies that human action, in its full breadth, receives its norm from the divine.” –Remi Brague (2007) [13] . In reality when it comes to Shari’ah Law, it is a totally different kind of system because this kind of law promotes social ethics. When an individual tries to break the law he/she is not just committing crime to the state but as well to God who is the creator of the foundation of Islamic Law.

The Shari’ah Law is a guide in an individual’s daily life. Its principle controls a person’s activity like in praying, eating, sexual conduct, self hygiene and even on how people should act towards others. Shari’ah Law is also use to solve problems within a nation and resolves disagreements between state borders.

SOURCES OF SHARI’AH LAW

Holy Qur’an [14] – is the main source of legislation of the Shari’ah Law. It contains the law and commandments that must be followed firmly by an individual and inform them how to behave decently in public and address decisions in court. This is the first resource to look up in understanding the system of Shari’ah. As defined by scholar, it is described as the divine word of God given to his Prophet Mohammad who is the last law bearer. Having its total verse of 6,239 only 500 verses have legal contents and mostly were spiritual or biblical verses. The verses talks about family and inheritance law, obligations and contracts, criminal law and as well as procedures.

Sunnah [15] (tradition) – this is the second source of legislation of Islam after the Qur’an. It is the existing written facts of Prophet Mohammad’s doings and words. It gives supports, clarifies and interprets the written rules in the Qur’an. Usually if the Qur’an is not enough to make a decision that’s the time that the Sunnah is consulted. It presides over Muslims practices and worship.

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Ijma [16] (consensus of opinion) – being the third source, Ijma can only be use in legislative matters. Under consensus there is an unquestionable authority of the scholar who concluded the consensus and cannot be defy and can only be challenge if the other consensus made is more credible.

Qiyas [17] (analogy) – considered as the fourth main source of Shari’ah Law. The principle of fairness is applied and highlights that when matching cases and same incidence happens there should still be a comparison between two things.

DIFFERENCES BETWEEN COMMON LAW AND SHARIAH LAW

THE USE OF PRECEDENTS (STARE DECISIS)

For Common Law the stare decisis plays a very important role [18] and is the foremost concern to be consider during court hearings. The judge and tribunals are obliged to look back to these precedents and based their resolution to create standardisation and regularity of judgment. Accordingly, the cases are predictable only because it’s the main characteristic of a Common law – the use of precedents.

In Shari’ah Law the use of precedents is almost indistinguishable [19] . For that reason, the Mufti who gives the Fatwa which is the verdict must resort in using other techniques in spite of his detailed understanding of the main legal texts and utilise those techniques more than ever in cases, when everything fails and does not give any way out of the disputes. Since Fatwa is not illogical, it is always still based on some precedent and this practice only happens in uncertain situations that even the four primary source of Shari’ah law which are the Quran, Sunnah, Ijma and Qias cannot assist in giving the verdict that results to the use of Fiqah [20] which is a collection of past cases collected by Imams and Mufti’s before them.

GOOD FAITH IN CONTRACTING (BONA FIDES)

Good faith in contracting for Common Law is typically not practice [21] . In reality under common law no general obligation is use in settling disputes. According to scholars, including it in the system threatens the steadiness. Dishonesty should be avoided and promises must be kept as the core principles in bona fides. Promises are to be honored in a certain approach or degree of effectiveness when it comes to contracts in Common law. A lot of considerations are needed for the validity of contract like legality of the contracts, consent must be present, both parties are reasonable individuals and terms and conditions must not be overlooked [22] .

On the contrary, bona fides in Shari’ah Law is the key guidance they apply for judgment. It is consists of three crucial elements: honesty, fairness and reason [23] which make it precisely suitable for Shari’ah Law’s standard. Given that this law is mostly based on religious legal tradition and generally controls the moral and beliefs of a person as well including his daily dealings with people, the principle presents a high significance for them.

KEEPING PROMISES (PACTA SUNT SERVANDA)

Keeping promises in Common Law have medium level of intensity [24] because of force majeure [25] is practice in this legal system. The contract can be invalid when certain circumstances happened like natural disaster [26] , war and other unanticipated events that are out of control of both parties. Failure of other parties to perform their obligation can also void the promise made during the contract signing. Hence the pacta sunt servanda is still honoured with certain clause attached to it under common law.

Paramount [27] is the word to be used for keeping promises when it comes to Shari’ah Law. For the reason that their laws came from God the Creator and if you dishonour that obligation you disobey God’s will as well as the State. Individual under this law is strictly indebted to keep their promises in spite of any conditions that may arise. However a contract can be void as well under Shari’ah Law but only in certain clauses temporarily.

CONCLUSION

As concluded, Common law has more advantages than Shari’ah Law. Accordingly, Shari’ah Law is stricter when it comes to keeping promises because under this law everything is unquestionable since the scope includes criminal law, family law, community law and even the beliefs and norm. Once religion, philosophy and politics are mix together in making decisions, there’s going to be never ending arguments and at one point decisions will be bias. Also, since the root of the source of Shari’ah Law came from old ages and biblically extracted it will have a hard time keeping up to the present situations, not like the Common Law where it is based on a person’s real life situations and which have been codified for uniformity of rulings. Common Law is more adaptive to this modern time since it is man-made and can be altered in some ways when the difficult time comes.

The birth of common law was acknowledged in the region of Great Britain [1] and that even before and after the Norman Conquest in 1066 these legal system was already developed by the English [2] . During the early days, the actual law of the Great Britain’s territories doesn’t have any written document but instead it was passed down verbally from generation to generation due to their customs. For this reason, Common law was also called man-made law. However, for the period of the ruling of the Normans, a Feudal System of law was recognised resulting in the division of the country having its own Norman Lord in each land and each ruler have their own court where the hearing of cases are done. Nevertheless in complicated cases people still have to go the King’s Court or Curia Regis [3] , where the King have selected officials from associates of the church and chosen barons acting as judges or law makers.

As time pass by, certain changes led to the practice of sending the judges into the country side and this was during the period of King Henry II (1154-89) [4] . As a result, plea rolls [5] was developed which is a record of all past cases including the important facts, judgment given and the reasons behind the decision of every dispute. Judges were also assisted in this recording practice. Ever since then the judges use the same decision from that records, everywhere when the same case is encountered and applied it uniformly across the country even though it clashes to the local customs in promoting- Common Law.

Judge-made law is the foundation of common law where the doctrine of precedent [6] aroused. Doctrine of precedent requires that whatever decision is made by the higher courts, lower courts must follow and make the same decision in the same cases and that’s why common law is also called precedent law and precedent means using the same case from before as an model or guide . It was instituted to create uniformity and consistency in giving decisions in any encountered case so as to promote equal reasoning and making it more predictable on what is going to be the outcome.

There are also two kinds of precedent:

Binding [7] – A precedent is binding on the basis of the hierarchy of the courts where the lower courts are bind to apply same decision in the relevant case based on the decision of a higher court before hand. For example the Supreme Court already made a resolution; the lower local courts must honour and recognise the said declaration.

Persuasive [8] – A precedent is persuasive, meaning it should be considered but not mandatory to be followed by the same level of hierarchy in courts but not higher, the decisions allows not to be binding on the judgment of the case. For example the low court of New South Wales is not bind by the precedent of the low court in Queensland.

NATURAL JUSTICE

Under Common law certain principles are established to create natural justice (procedural fairness) [9] during hearing. It is to be strictly followed by tribunals and courts.

Each party must be given the same chance to present their own cases.

The assigned judge must be fair in giving decisions and does not think of his own personal benefits of the outcome.

The verdict must be based only on the given evidence to the decision maker.

SHARI’AH LAW AS ALLAH’S LAW

Islamic law (Shari’ah Law) originated from the Arab Peninsula and Mesopotamia in the 7th century AD [10] . From there it expanded to Central Asia and Middle East countries. Basically Shari’ah Law are based on religious behaviour of an individual and these law came from God (Allah), so as understood it is divine in nature and that the continuity of Shari’ah law is secured by the Mufti- as the Author Jurist [11] meaning the judge and law professor who gives the Fatwa [12] , an authorised answer to the legal questions, also the notaries, the court witnesses and the decision maker as well himself that make it possible to conduct a hearing under this system.

“The idea . . . implies that human action, in its full breadth, receives its norm from the divine.” –Remi Brague (2007) [13] . In reality when it comes to Shari’ah Law, it is a totally different kind of system because this kind of law promotes social ethics. When an individual tries to break the law he/she is not just committing crime to the state but as well to God who is the creator of the foundation of Islamic Law.

The Shari’ah Law is a guide in an individual’s daily life. Its principle controls a person’s activity like in praying, eating, sexual conduct, self hygiene and even on how people should act towards others. Shari’ah Law is also use to solve problems within a nation and resolves disagreements between state borders.

SOURCES OF SHARI’AH LAW

Holy Qur’an [14] – is the main source of legislation of the Shari’ah Law. It contains the law and commandments that must be followed firmly by an individual and inform them how to behave decently in public and address decisions in court. This is the first resource to look up in understanding the system of Shari’ah. As defined by scholar, it is described as the divine word of God given to his Prophet Mohammad who is the last law bearer. Having its total verse of 6,239 only 500 verses have legal contents and mostly were spiritual or biblical verses. The verses talks about family and inheritance law, obligations and contracts, criminal law and as well as procedures.

Sunnah [15] (tradition) – this is the second source of legislation of Islam after the Qur’an. It is the existing written facts of Prophet Mohammad’s doings and words. It gives supports, clarifies and interprets the written rules in the Qur’an. Usually if the Qur’an is not enough to make a decision that’s the time that the Sunnah is consulted. It presides over Muslims practices and worship.

Ijma [16] (consensus of opinion) – being the third source, Ijma can only be use in legislative matters. Under consensus there is an unquestionable authority of the scholar who concluded the consensus and cannot be defy and can only be challenge if the other consensus made is more credible.

Qiyas [17] (analogy) – considered as the fourth main source of Shari’ah Law. The principle of fairness is applied and highlights that when matching cases and same incidence happens there should still be a comparison between two things.

DIFFERENCES BETWEEN COMMON LAW AND SHARIAH LAW

THE USE OF PRECEDENTS (STARE DECISIS)

For Common Law the stare decisis plays a very important role [18] and is the foremost concern to be consider during court hearings. The judge and tribunals are obliged to look back to these precedents and based their resolution to create standardisation and regularity of judgment. Accordingly, the cases are predictable only because it’s the main characteristic of a Common law – the use of precedents.

In Shari’ah Law the use of precedents is almost indistinguishable [19] . For that reason, the Mufti who gives the Fatwa which is the verdict must resort in using other techniques in spite of his detailed understanding of the main legal texts and utilise those techniques more than ever in cases, when everything fails and does not give any way out of the disputes. Since Fatwa is not illogical, it is always still based on some precedent and this practice only happens in uncertain situations that even the four primary source of Shari’ah law which are the Quran, Sunnah, Ijma and Qias cannot assist in giving the verdict that results to the use of Fiqah [20] which is a collection of past cases collected by Imams and Mufti’s before them.

GOOD FAITH IN CONTRACTING (BONA FIDES)

Good faith in contracting for Common Law is typically not practice [21] . In reality under common law no general obligation is use in settling disputes. According to scholars, including it in the system threatens the steadiness. Dishonesty should be avoided and promises must be kept as the core principles in bona fides. Promises are to be honored in a certain approach or degree of effectiveness when it comes to contracts in Common law. A lot of considerations are needed for the validity of contract like legality of the contracts, consent must be present, both parties are reasonable individuals and terms and conditions must not be overlooked [22] .

On the contrary, bona fides in Shari’ah Law is the key guidance they apply for judgment. It is consists of three crucial elements: honesty, fairness and reason [23] which make it precisely suitable for Shari’ah Law’s standard. Given that this law is mostly based on religious legal tradition and generally controls the moral and beliefs of a person as well including his daily dealings with people, the principle presents a high significance for them.

KEEPING PROMISES (PACTA SUNT SERVANDA)

Keeping promises in Common Law have medium level of intensity [24] because of force majeure [25] is practice in this legal system. The contract can be invalid when certain circumstances happened like natural disaster [26] , war and other unanticipated events that are out of control of both parties. Failure of other parties to perform their obligation can also void the promise made during the contract signing. Hence the pacta sunt servanda is still honoured with certain clause attached to it under common law.

Paramount [27] is the word to be used for keeping promises when it comes to Shari’ah Law. For the reason that their laws came from God the Creator and if you dishonour that obligation you disobey God’s will as well as the State. Individual under this law is strictly indebted to keep their promises in spite of any conditions that may arise. However a contract can be void as well under Shari’ah Law but only in certain clauses temporarily.

CONCLUSION

As concluded, Common law has more advantages than Shari’ah Law. Accordingly, Shari’ah Law is stricter when it comes to keeping promises because under this law everything is unquestionable since the scope includes criminal law, family law, community law and even the beliefs and norm. Once religion, philosophy and politics are mix together in making decisions, there’s going to be never ending arguments and at one point decisions will be bias. Also, since the root of the source of Shari’ah Law came from old ages and biblically extracted it will have a hard time keeping up to the present situations, not like the Common Law where it is based on a person’s real life situations and which have been codified for uniformity of rulings. Common Law is more adaptive to this modern time since it is man-made and can be altered in some ways when the difficult time comes.

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