Category: Common Law

What is morality?

According to Mill (a renowned legal philosopher), our moral obligations result from the justified moral code of our society however there are numerous takes on what morality actually means, we have morality as set down by religion; the easiest examples being the ten commandments, morality and religion, however, are not the same; a society might found its collective morality, which refers to addressing widespread harm caused by actions of individuals/groups in society, however, religious practises are sometimes criticized on moral grounds (e.g discrimination) and so, we can not use religious definitions of morals as the definition of morality within this essay. Although the law can introduce and adapt morality within a society, and laws are often changed on moral grounds- it is distinguished from morality as the law is explicit due to its rules and penalties. Theorists like Dworkin assert that the law must make use of the relevant morality of the society in order to be a positive thing for said members.

So, compiling this entirely, we can define morality (for the context of this essay) as the most important code of conduct put forward and accepted by a society, predominantly based on the four fundamental principles of ethics: the principle of nonmaleficence (don’t harm others), the principle of justice (we all have to give people what they deserve), the principle of beneficence (we all need to be nice) and finally, the principle of self autonomy (respect people’s choices around their own lives), which should seek to uphold the balance of that society, reducing the amount of harm to members of said society to an absolute minimum. These four fundamental principles are widely used throughout philosophy and medical law, for instance they are discussed at length within the US national library of medicine and the british medical journal says they ‘ offer a common, basic moral analytical framework and a common, basic moral language.’ My reasoning for choosing these terms as my definition is that they are widely used professionally and have proved effective so far within global medical professions. I believe that these objective rules will be more effective as they cover most commonly held morals and current legislation as well, for example the principle of non malevolence accounts for not killing people (which is harming someone and illegal) and not hurting people physically and/or mentally in cases like domestic abuse (also illegal).

Within this essay I will cross examine specific cases with the previously mentioned definition of morality, examining the moral conflicts within each and discussing whether the most modern legislation surrounding each actually follows the aforementioned definition. I hope to conclude that, yes, the law should be based on these four fundamental principles of ethics as a starting ground that can be worked upon whilst taking into consideration the collective moral issues and values that are held by the relevant society.

What laws will be examined within this essay?

Throughout my essay, I aim to channel my argument through the following examples:

Abortion law and laws regarding the LGBT community (e.g- same sex marriage, transgender rights) my reasoning for selecting these specific examples are that they are extremely relevant within our current society and that we see prominent examples which can be examined effectively in relation to my title such as the supreme court’s recent ruling allowing President Trump’s proposed transgender military ban which conflicts directly with the principle of nonmaleficence as it denies these servicemen/women the right to serve for a cause they believe in and harms them by not allowing them to work and earn money to live however we could argue from a right wing perspective that transgender military staff do some moral harm to the American society, this argument is much less stable than the argument against this ruling though; we also see the reemerging ‘pro life’ movement, which states abortion is wrong because it violates ‘respect for human dignity’ and I am drawing this from an obvious biased source, meaning this take is hardly objective, I think it is useful to draw this statement from the pro life stance as it is effective to see into the perspective from this view (plus, it is quite recent so offers an insight into an almost ‘second wave’ of the pro life movement), the abortion law debate spikes some contradictions within our aforementioned definition for morality as the legalisation certainly pushes the principle of self autonomy, allowing women to choose without legal judgement, but it could be argued (more often by those on the right leaning side of the political spectrum) that it impedes on the principle of non malevolence as they may argue that abortions are harming the ‘baby’ that is getting removed.

Summatively, I have chosen the previously mentioned ideas as they are extremely controversial, current and interesting debates which cause polarising effects throughout society and the positive/negative effects of rulings that will be mentioned are often subjective and interesting to cross examine with the definition of morality that is being used within the context of this essay.

How does abortion law in the USA conflict with/relate to morality?

Abortion rights have aroused more passion and controversy in society than most other feminist issues. The real debate of abortion law began in the 50s/60s, although illegal until 1973 in America and 1967 in the UK; women often sought ‘backstreet abortions’ which were dangerous and carried a large risk of infection, a chicago hospital was found to have treat 5000 women with abortion related injuries in 1960 alone but with the rise of the christian right as a reaction to the decades progressive nature, it was difficult to really legalize it nationally in the USA- the northern states like New York began to legalise it due to the demands of the feminist and women’s liberations groups that often coordinated from such ‘progressive areas’ however in the ‘deep south’ it was much harder, the fight for abortion rights nationally in the USA really began in Texas with Jane Roe who challenged the law which stated that abortions may only be carried out if the woman was at risk of death and applied severe punishments to those who would ‘procure an abortion’ for a pregnant woman, and after several years the supreme court ruled 7-2 in favour of national abortion rights in roe v. wade; this decision led to huge celebrations from women’s rights groups across America such as the National organisation for women and the many women’s liberation groups across America, however it also contributed in large to the rise of the christian right and the ‘pro-life’ movement, as mentioned earlier my reasoning for discussing abortion law is how it can be perceived as an immoral law and a moral law depending on the person that is discussing the issue and as such is a good topic to discuss when asking if the law should be based on morals- certainly from a liberal, feminist point of view this would be a groundbreaking triumph for women across the USA and was obviously a step towards a more morally correct society, allowing women control over their body and favouring the principles of autonomy and nonmaleficence (a woman could no longer be punished and/or discriminated against for seeking an abortion) however the christian ‘pro-life’ sector would see it as hugely violating these same principles as, from their view, this woman is murdering an unborn child with its own right to live and own choice, therefore meaning she has violated this humans right to autonomy and is going against the principle of non malevolence by doing so. So, does the roe v. wade ruling (1973) support or conflict with the idea of basing law on moral values? The ruling granted pregnant women the choice of getting an abortion within the first trimester, after that this choice became ‘state-regulated’ and largely only followed through with an abortion if the womens like was put in danger by the pregnancy. The moral argument surrounding abortions primarily focus on the fetus’ right to live and when that right to live actually begins, ignoring how strange it is to give something the right to live at one point when it did not have that right moments earlier, however since the fetus itself is not actually labelled as a fetus until the 8th week of the pregnancy (previously called an embryo or a zygote) it can be objectively said that this embryo has is not harmed anymore than a section of muscle is harmed when it is removed as it has no conscious thought at this stage, therefore the principle of nonmaleficence does not conflict with this ruling/law as the action itself is bringing no harm to any living person, other than perhaps the feelings of somebody who is against it, the argument against it and the idea of restricting a woman’s ability to choose, exemplified quite well in a recent attempt in Ohio which could give women and doctors involved in abortions jail time and even a death sentence which, if drafted into law, would interfere with the principles of autonomy and non malevolence as not only would this woman not be allowed to choose her own actions, she along with the doctor involved would be punished with either jail or death for her choice. This ruling is likely not going to pass into law but offers an insight into which side is morally right in this case and allows us to almost certainly conclude that the roe v. wade ruling was a morally correct ruling.

This ruling is not only morally correct on an individual case basis but also seems to benefit society as well, an interesting but questionable study undertaken by professors John Donohue of Stanford university and Steven Levitt of the university of chicago linked the rising abortion rates after roe v. wade to the decline in crime rates. They concluded that for every 1000 extra abortions between 1973-1976 there were 50 less violent crimes, 0.6 less murders and 360 less property crimes and in some cases, a 50% drop in crime overall however this finding has been cricised most notably by Foote and Goetz who, in ‘the impact of legalized abortion on crime:comment’ stated that ‘First, there is a coding mistake in the concluding regressions, which identify abortion’s effect on crime by comparing the experiences of different age cohorts within the same state and year. Second, correcting this error and using a more appropriate per capita specification for the crime variable generates much weaker results.’. So, upon analysing the source and criticism/corrections to it we can state that despite the previously mentioned statistics being as accurate as would be ideal, the idea of abortion rates and crime rates being inversley proportional is key to examining whether the legalization of abortion is morally just as it proposes that not only does it conform with the principles of autonomy and non malevolence, it also contributes to a wider society level in reducing violent and casual crimes, reducing the overall harm done to individual members of a society and as such, reducing harm to that society as much as it can which is another one of the factors of the definition of morality that has been defined within the context of this essay.

This conclusion supports the argument that laws should be based on the four fundamental principles of morality as we see a direct correlation between the legislation of abortion and the reduction in crime rates alongside the promotion of individual freedoms, reducing harm not only individuals but society as a whole and increasing the autonomy of individuals, therefore this relates to the three of the principles of morality mentioned in our definition, the principle of nonmaleficence as it allows women to reduce risk to their own bodies and not be persecuted for doing so, the principle of beneficence as it reduces prejudice toward women who choose to undergo an abortion and the principle of self autonomy as it respects the individual choice of the woman who chooses to undergo an abortion

How do laws surrounding homosexuality in the UK support/conflict with morality?

The debate surrounding homosexual acts in Britain flourished during the 50s/60s; prior to that it was a criminal offence and homosexual/bisexual men could face a maximum sentance of life in prison if proven to be enganging in homosexual acts, this was due to the criminal law ammendment act, specifically ‘the Labouchure ammendment’ which extended punishment to any men found commiting homosexual acts. Through the 50s there were numerous high profile cases which led to the establishment of the Wolfden Committee. The first high profile case was Alan Turings, a mathmetician who played a large role in the second world war as a Nazi code breaker, who was convicted of ‘gross indecency’ in 1952, accepting hormome treatment as an alternative to prison which led him to commit suicide in 1954 (it is widely speculated that Turings death was the result of a murder or the result of an accidental cyanide poisining from a chemistry experiment however the court ruling decided it was a suicide so this is the stance I will take). This event alone brings the laws against homosexuality into question as moral or not, it is known that homosexual laws were put in place due to cultural and religious reasons that caused homosexual acts to be seen as morally corrupting and harmful to wider society as a whole, being a gateway to more disturbing paraphilia like necrophilia or beastiality however legislation that outlawed homosexual activity and even advocated the death penalty for homosexual actions until 1961 (removed in section 61 of the ‘offences of the person act’ 1961). The severity of punishments for homosexual acts, even after the removal of the death penalty, directly conflicts with our four fundamental principles of morality. It conflicts with the principle of nonmalevolence as it directly harms the convicted person both physically and mentally through the prison sentances applied, causing isolation and increasing the risk of physical harm to this person by placing them into a prison environment, and the alternatives in place (e.g-hormone treatment) which caused physical and emotional distress for those convicted. It conflicts with the principle of self autonomy as it outlaws the private pleasures of the individuals in question and seeks to punish them for these actions, showing that legislation punishing homosexuality does not respect an individuals private choices but instead seeks to regulate them and force them to conform to a preferred state, emphasising the conflict between these laws and the principle of self autonomy. They conflict with the principle of beneficence for the same reason as they conflict with each of the previously mentioned conflicts, mainly the fact that prescribing severe punishments like hormone therapy and prolonged prison sentances are not exactly the epitome of kindness.

In reaction to numerous high profile cases such as the Turing case and the imprisonment of Edward Montagu led to the establishment of the woldfen committee in 1954 with the aim of reviewing UK law in relation to homosexuality and consequently, the ‘Report of the Departmental Committee on Homosexual Offences and Prostitution ‘ (better known as the wolfden report) was published in 1957 and reccomended that ‘homosexual behaviour between consenting adults in private should no longer be a criminal offence’, it also reccomended the age of consent to be 21 for homosexual males (it was proposed to be 18 however Wolfden himself was staunchy conservative in his beliefs toward sexuality and refused to allow any age of consent lower than 21). The short term impact of the report itself was not overly impactful, Wolfenden himself was quite conservative saying that homosexuality was ‘morally repugnant’ and played a large role in some of the more restrictive natures of the report such as the rather high age of consent for homosexual males, he believed that a lower age of consent could ‘corrupt’ young men into undergoing sexual acts, this can all be found in an article called ‘Wolfenden: not so liberal on homosexuality after all’ published by ‘The Guardian’, the publisher itself is generally a more left wing liberal news publisher and as such is more inclined to be hypercritical toward conservative viewpoints, even if they were simply a product of their time as Wolfenden’s was likely to be. Despite the lack of a short term impact, the report did largely contribute to the ‘sexual offences act’ which was formed under the Wilson Labour government in 1967, the act implemented the majority of the reccomendations of the wolfenden report, it legalised homosexual acts between two men aged over 21 in private; this act coincides with the principle of self autonomy as it recognises that acts between two consenting individuals in private should not be subject to government intervention as it is not causing harm to any people not involved in the act. Despite the groundbreaking nature of this act, homosexual activity was not entirely decriminalised as acts of ‘gross indecency’ could still be prosecuted by police (about 1000 cases of convicted ‘gross idecency were recorded in 1969, steadily increasing to around 2000 in 1977 before dropping)

To state that the relationship between law and morality is one of mere coincidence, would be inherently false. There has long been controversy and debate between positivists and natural law theorists as to what extent morality influences the law. Essentially, one can argue that both our common law system and Acts of Parliament themselves are built upon and influenced by core moral values which are ever-present in today’s modern European society and continue to develop as time goes on. Jerome E. Bickenbach describes the relationship as “the law [being] merely a social instrument to be closely monitored and assessed against extra- legal standards of moral or political acceptability” , therefore supporting that it is, in fact morals, which govern the law.

Morality is a subjective concept, however there are key principles which achieve basic consensus in our pluralistic society, such as the basic idea that killing another human being is morally wrong, which is reflected in our legal system as a punishable offence. The laws on murder and theft mirror those of the Ten Commandments (set out in the Christian holy book- the Bible), ‘Thou shall not kill’, ‘Thou shall not steal’. Due to the omnipresence of religious principles in UK society, they have formed the basis for many longstanding moral concepts, that we uphold to the present. Such a view is also shared by Martin Partington in his book Introduction to the English Legal System.

Subsequent cases confirm that moral rules still in fact influence the law on murder, such as in R v Dudley and Stephens in which the judges discussed the sanctity of life in relation to the shipwrecked sailors killing and eating their cabin boy out of ‘necessity’. There, Lord Coleridge himself states that “sin and crime are spoken of as apparently equally illegal” demonstrating the relevance of morality, in our legal system today. Such principle was also raised by Lord Griffiths in R v Howe , where he spoke of the need for the law to protect the people during this time of prevalent violence and terrorism, stating that “the sanctity of life lies at the root of this ideal and [he] would do nothing to undermine it” . Both cases demonstrate judges applying moral principles by means of interpreting the law and coming to a just decision, therefore illustrating that the two concepts clearly reinforce each other in order to create a balanced legal system, a relationship not born by chance.

Judges can also change legal rules in order to reflect the moral views of society. Since the 1966 Practice Statement, the House of Lords has the right to change its past decisions in order to modernise the law, when it is ‘right to do so’ . In 1991 it was used in the case of R v R to reverse the precedent which permitted for a man to be able to rape his wife without sanction. The court recognised the relationship between the changing times and the need for “the common law…. [to evolve] in the light of changing social, economic and cultural developments” , took it upon themselves to eradicate a morally repugnant law based on society’s changed view surrounding the subject. Such action follows Bickenbach’s aforementioned framework of the law working to fit with the moral and political acceptability of the time.

The influence of morality upon legal decision can also be seen in the highly controversial case of R v Brown (and others) The majority judges took a natural law approach and emphasised morality, for example they said that the defendants’ acts were “degrading to body and mind” “cruel, degrading, divorced from morality” and that “pleasure derived from pain is an evil thing” , evidently referencing and enforcing their strict ideas of morality. The two dissenting judges were more liberal, emphasising that the law should respect personal autonomy and individual freedoms, even going so far as to say that the law should allow consent to S47 injuries in cases of sadomasochism, clearly taking a more positivist view. The case was decided

There are however instances which may make one debate whether the connection between really is as solid as it may appear. A topic that clearly demonstrates these differences is that of homosexual equality in the UK. Homosexuality was legalised in the Sexual Offences Act 1967, an act which was commenced immediately, showcasing the swiftness of the changing law, but up until that point it was still illegal. The shift in law was sudden, however it took much longer for society’s moral opinion to change, as can be seen by the fact that same- sex marriage was legalised in The Marriage (Same Sex Couples) Act 2013, which even still didn’t come into force until 2014. This therefore discredits the argument that law and morality coincide, since it depicts that instead of law being based on moral principles, the law itself may be trying to facilitate a potentially premature change in society. Homosexuality is still not widely accepted, despite the legal progression. For instance, the case of Bull v Hall , which arose only a year before the Marriage Act, consisted of guesthouse owners being found as discriminatory for refusing to provide a male couple a room for their stay. Despite this, the legalisation of homosexuality at such an early stage, provided the time for society to adapt and now establish legal equality for a larger range of people, making society more inclusive and over time, more accepting. It is evident that by laying groundwork for societal moral development by means of the law, there is no room for the relationship between law and morality to be a mere coincidence.

Furthermore, although there are long standing moral principles surrounding the idea of ‘loving your neighbour’, under UK law there is no general duty to help someone who is in trouble (most commonly referred to as the Good Samaritan Law), unlike in France for example, the presence of such law being a clear illustration of the law being established upon moral obligation to society. However, in the UK, omissions are accepted in some circumstances, such as when there is a special relationship or if one is under a contractual duty to perform in a certain way. Nevertheless, although the UK lacks the general duty to act when someone is in need, that is not to say that morality does not play a part in the lack of such law. One may consider that it is relatively universally agreed upon, that a person of good ethics would help someone out of their own accord, rather than simply doing it to avoid legal liability. It can therefore be inferred that the actual lack of such law incites free will and moral autonomy.

Laws protect citizens from themselves but it also protects them from any abuse of power at a local or national level. Laws are important aspects of life that guide the governance of many societies. It is supposed to help build society while promoting unity among those that are under it. In some societies, there are some people who willingly do not agree with specific laws such as marijuana legalization because this implies bad conduct, especially for the youth and citizens. This reminds me of Civil Disobedience written by David Thoreau as he explains that the government passing laws whose moral standing is questionable and laws that are unjust do not promote equality among the people. The state of California is an example of a state wherein the federal government declared a law that went against moral standards. Close to twenty years ago, the state of California became the first state to legalize the sale of medical marijuana, which opened up the market to more immorality by making way for the growth of the black market (Mcgreevy 2019).

In many cases, the government argues that the laws they pass are for the economic good and the growth in the future of society. This may be a way to get as many people to support the laws sometimes people do not care about the effect of unjust laws. Many citizens find themselves conflicted between following the laws and staying true to what they believe, even if it means breaking the law. Despite the nature of the law that has been passed, citizens should not blindly submit to any law especially if it goes against their moral standing.

According to Civil Disobedience written by David Thoreau, the government does not support the progress of the people in any way, economically, socially and even physically bypassing immoral and unjust laws which may lead them to disobey such inequality orders. By legalizing the use of medical marijuana, the state of California gave room for the black market to grow and thrive (Mcgreevy 2019). Many growers and retailers of medical marijuana have been suffering due to the increased taxes that were part of the legalization. The growing of medical marijuana is expensive, and the taxes required to run a licensed marijuana shop are too high. The majority of retailers choose the black market where they can sell illicit marijuana and make profits without paying taxes. By simply legalizing the use of marijuana, the state of California has made many of its citizens full of greed. Many of the marijuana growers prefer to make a huge profit from their products instead of paying taxes. The desire for a higher amount of money has caused many to get into the black market, selling below standard substances at a higher price and making more profit (Mcgreevy 2019). In many societies, according to the book of Moses, The Torah, is used as a guide for moral values and justice. Commonly known as the commandments, which guide against the greed of whatever manner, even if it is part of the law. It also warns against stealing, in this case stealing from the government in the form of tax evasion (Exodus 20:2). Both of which go against moral values.

When a government passes laws that are conflicting with the moral standing of a person, it is right not to follow the law and make morally sound decisions (Thoreau 73). With the legalization of marijuana in California, there was a 23% growth rate in the economy (Mcgreevy 2019), which is an impressive growth. However, the effects of marijuana on the health of people cannot be ignored. Citizens who live in the state of California agree not to follow the laws on marijuana since doing it is against their values. They practice what is known as Civil Disobedience. According to Henry D. Thoreau, Civil disobedience is described as “the active refusal of a citizen to obey certain laws by the government because they do not morally agree with them or their conscience ” (Thoreau). Using Thoreau’s description, citizens who do not agree with the legalization of marijuana are free to exercise their moral standards. Despite being governed by the law, people are not slaves of the law. The teaching of the Torah warns against blindly submitting to laws without questioning their moral standing, these laws were delivered in the form of a speech by Moses in Deuteronomy chapter one through thirty. The law keeps changing depending on the government in place at the given time. Citizens who blindly follow the law instead of questioning their moral standards may find themselves torn between two sides when the laws keep changing.

The Torah of Moses as a moral guide gives a clear guideline of how society should act towards laws that are unjust and discriminatory. In the Book of Exodus, the Israelites were given laws on how they should treat those who abuse them which are the Egyptians. It simply makes the people obey the laws without question despite the inhumane nature of it. The leader of the Israelites, Moses, exercised civil disobedience written by Thoreau by going against the law and seeking freedom for the Israelites. The society should be developed on unjust laws and should speak up against them. Remaining silent about unjust laws and willingly believing in them only shows that one is in support of the law despite how abusive they are. It is right to decline executing laws that are oppressive rightfully, but it is also wise to speak up against such laws and strive for equality for all.

In many families, children follow laws and moral guidance that their parents agree to since they do not have an opinion of their own. As children grow up, their interaction with the world plays a role in the laws and morality that they choose to follow and the reasons for doing so. The socialization of many young people in modern society has affected how they view the law and the decisions they make regarding the law. Many young people, in modern-day society, are leaving their parents’ homes earlier than they did and they are getting married at a much older age (Waite 1986). Without the guidance of their parents, young people are exploring what they think morality means for them. The time that young people spend away from their parents helps to improve their individualism, self-sufficiency, and change in attitude about family especially when it comes to sex roles in a family set-up. The individualism that young people experience allows them to explore more about themselves and those in their surroundings. The traditional sex roles do not seem very appealing to young people, especially those in non-family living.

Morality can be taught, learned and acquired as it is naturally born. According to research conducted in two universities among young men and women, they test their hypothesis that nonliving families by young adults change their attitudes, value plan, and expectations that move them away from their belief in traditional sex roles (Waite 1986). From the research, it was discovered that the effect was true among young women and not so much in young men. When young adults move from their parent’s homes, they are faced with life decisions that they have to make on their own. The decisions lead them to question what they had considered morally right as they grew up and what they are currently facing. It is at this point that young adults learn new values and morals that help them decide for their life. Many young adults consider traditional sex roles abusive, especially to women. They also know that the values they have been taught and the standards of morality state that a man should be with a woman. For young female adults to take charge, not only of their lives but even of their sexual roles, they turn to homosexuality, which gives them room to take charge. Many young people also find it fashionable to be homosexual simply because others of their age seem comfortable doing it.

The idea of homosexuality makes us aware of our minds before it is executed. Due to the reasons, Waite concludes that homosexuality is a behavior that can be learned and not necessarily in-born. Morality, unlike what we may choose to believe, is not an inborn trait but can be learned as one grows. The standards of morality are not permanent but temporary, and they could change depending on the individual and the environment they are at. Morality is also dependent on one’s ability to make sound judgment even during peer pressure and decisions that they can comfortably live by despite what many may think. That is to say that the standards of morality change from one person to another, and there is not just one correct moral standing, which means that the laws that are considered morally wrong or unjust could stand as morally correct among another group of people (Thoreau).

In response to the criticism of the eight clergymen, Martin Luther King’s letter from Birmingham Jail was written. The famous letter addresses the problem affecting America’s current problems, and much more importantly Birmingham in 1963. His fame, however, lies primarily in King’s explanation of why he acts to nonviolent action. Part of the letter contains his interpretation of rules that are just and unjust laws. Although King’s statements were made almost 50 years ago, the value of distinguishing these two types of laws is still relevant in modern issues, especially with the particularly relevant problem issue of same-sex marriage.

First of all, it is important to remember that Martin Luther King was not in favor of disregarding all laws. Rather, he points out that there are different kinds of laws to be followed or not to be followed. King said, “An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is, in reality, expressing the highest respect for the law” (King 155). Here in which King says as long as disobedience is done with the right belief and just cause, it will be more morally right than to follow an unjust law. More importantly in search of a greater good for society rather than for a single, personal reason, civil disobedience must be done. Since it is the unjust laws that caused the civil upheaval, the distinctive factors of what makes a law unjust are more important to remember. The LGBTQ community has always received backlash from our society because they deviate from the norm. What people do not see is that they are just trying to live their life as a human being, having no intention to be constantly reminded that what they are is a mistake. Love is for everyone and it should not be held back because of a person’s preference. Same-sex marriage should be legalized in the entire world because all people deserve to love freely regardless of their gender and sexuality.

The standards of morality may not be the same to all simply because of the difference in the school of thought concerning certain issues. However, the basics of morality, which are to promote life and the general well-being of the people, should be believed in. Morality seeks to bring out the best in every member of the society and unites each other. However, despite the difference in the standards of morality, the laws of the land should not be unjust. Citizens should not be told to follow rules blindly, even when they disagree with the moral standing of the laws. Everyone needs the freedom to express their beliefs, even if it differs from the law.

Works Cited

1. MCGREEVY, PATRICK. ‘California Now Has the Biggest Legal Marijuana Market in The World. It’s Black Market Is Even Bigger.’ Los Angeles Times, 2019.
2. ‘Letter From A Birmingham Jail [King, Jr.].’ Africa.upenn.edu. N.p., 2019. Web. 29 Nov. 2019.
3. Waite, Linda J., et al. “Nonfamily Living and the Erosion of Traditional Family Orientations Among Young Adults.” American Sociological Review, vol. 51, no. 4, 1986, pp. 541–554. JSTOR, www.jstor.org/stable/2095586.
4. Thoreau, Henry. On The Duty Of Civil Disobedience. 1st ed. Elegant Ebooks, 1817. Web. 29 Nov. 2019.

Question 1 – Compulsory

Northumberland County Council’s main concern is their entitlement to the money that was entrusted to Aleena, their employee, and any remedies that will enable them in the repossession of the expended money.

In order for the Council to retrieve the monetary sum, the trusted money can be traced through Aleena’s own account and her distribution of the money in question. Tracing is possible in this case but there are certain conditions that have to be met. The Council must also be aware that tracing is not an absolute remedy, but rather the ability to follow the trust property into the hands of the person who then becomes a constructive trustee of it. Here, the tracing will be successful in equity rather than in common law, because it holds the inability to trace money into mixed funds, and the problems this can cause are seen in the Agip Ltd v Jackson case. Equity enables a more flexible route and more accustom to the case at hand.

A fiduciary relationship should exist. It must be noted that the necessity for this has been criticized by Lord Millett in Fosket, where he said there was no logical reasoning behind it, and in the more recent case of Televantos it was also argued the requirement lacked justification. However, as Aleena is ‘an administrator in the Planning and Building division of Northumberland County Council’, they fit into a category of a fiduciary relationship; employee and employer. The duty requires Aleena to act solely in the interest of her employer, and not in a capacity of her own interests as presented in Ransom, where employee’s duties were laid out as serving in good faith and mutual trust. The case also denied there was a breach of fiduciary duty on the grounds of the employment contract, so this would have to be considered. Nonetheless, it is highly likely Aleena has breached her role as a fiduciary. Aleena abused her position and profited from her role; conduct that ultimately gives her an undue benefit. Her gain is also easily identifiable as she has used the sum for her own personal property.

Tracing secondarily requires the existence of an equitable beneficial/proprietary interest. This can sometimes be hard to identify, as apparent in the case of Taylor v Plumer because it can be difficult to demonstrate the required proprietary interest. This is not the case here, as there is a monetary trace available in some of Aleena’s purchases from the initial bribe money which are held under a constructive trust for the beneficiaries. Equity have seemingly turned to the imposition of constructive trusts willingly, where even in the Twinsectra case a thief holds on to constructive trust. Tracing must also be in a traceable form and not inequitable. Aleena consciously knew the money was not hers to spend so would be entitled to repay said money, so the rule of equity would not step in here, as it did in the Re Diplock case. Issues arise with the traceability of some of the bribe money. Aleena spent ten percent of the money on a holiday and a further twenty percent of the money gambling in a casino, meaning the property is not necessarily ascertainable or traceable. However, as again found in Diplock, the beneficiary can issue personal claims against Aleena. It’s apparent that Aleena does not have much money, but the Council can look at other assets she has that could be claimed, for instance, her car, which was valued at ‘£5,000’.

The Council will have the first charge on the property for the recovery of the trust money as in Re Oatway, it was held that if a trustee (in this case Aleena), mixes her own money in an account, and then spends all the money on identifiable property the beneficiaries are entitled to the financial reclamation. Tracing can be done on the shares too, because a) the money is retrievable and b) per Foskett any increase in money or profit (even though Aleena’s shares in BHP) can still be claimed by the beneficiary.

Evidently in Reid, the fact the property is bribe money has no effect and can still be held under a constructive trust. Here the property bought by Reid was still required to be returned to the beneficiary, meaning the traceable money is held on trust, including all Aleena’s purchases, which would have to be returned to the Council in this case. Lord Templeton delivered the importance of the case citing that even if the property were invested, as Aleena did, the fiduciary would be required to make good the deficit. FHR advanced upon the case from a commercial standpoint. It emphasized that a proprietary remedy is still available for bribes and encompassed the employer-employee relationship. This emphasizes how a proprietary remedy would be available to the Council from tracing the money and would be more apt than a personal claim. From this tracing, per Re Hallett, the Council will be able to put an equitable charge over Aleena’s account making them a secured creditor against her as a wrongdoing trustee in protection from her becoming bankrupt. As said earlier, this is a prospective risk as she only has £3,000 in her account after spending £100,000, and only one other monetary asset. In general terms, it is likely that the majority of the money will be recoverable to the Council.

On the contrary, the Council should take into consideration that there is a possibility that they may not have a proprietary remedy. Although Aleena had an established duty to her employer the money was given directly to her. In Sinclair’s controversial decision, as the proceeds were not beneficially owned by the claimant they had no proprietary interest and its judgment made it harder to strip a recipient of a bribe. The Council would need to prove as Aleena’s employer, she was given the money under a professional nature and they thus have an equitable interest in the bribe sum. Essentially, as following the findings in FHR, Aleena’s benefit has been obtained by taking advantage of the £100,000 which was properly that of the principal, as she was under their supervision and acts within a division of the Council itself.

In terms of the other parties involved, Newcastle Credit Union may be liable under the doctrine of knowing/unconscionable receipt and concerns receiving property that has been conveyed by an apparent or known breach of fiduciary duty. The Union’s ignorance may make them liable because Aleena’s account, never had more than £5,000 in it, and she deposited £100,000. There may not need to be outright dishonesty from the Credit Union either, as Belmont Finance Corp Ltd held that negligence could suffice. Re Montagu ruled that the relevant party must have, at the minimum, negligently and recklessly failed to make queries that a sincere person would. The Credit Union failed to question Aleena about the huge sum, even though they knew she did not have that kind of money, specifically as she had applied for a mortgage with them earlier.

A proprietary remedy is the best outcome for the Council unless they make a personal claim against Aleena, but her funds limit that. The Council should also be aware that remedies are discretionary, so the outcome is not concrete only advisory.

Question 2 – If the common law has its own internal powers of adaptation, why does it need a different system of law with distinct rules laid over top of that? What is it that Equity achieves in the modern law?’

The common law’s developmental shift to one that is more unrestricted, has seen it coincide with the progressive process found in Equity. A fusing of the two systems allowed an assimilation of the court’s procedures and principles found in Equity and the common law in 1873 by the Judicature Acts. In the modern legal system, the relationship between Equity and the common law is one of a supplementary nature and one exists in the facilitation of the other. Thus, in essence, Equity exists to achieve what the common law itself cannot provide, by acknowledging it and acting as a compliment. This creates a dependence that is necessary to strike a balance in the legal judicatory and sets the tone of both Equity and common law in a modern context as very differing but overlapping systems.

The tension between Equity and common laws both adapting systems can be seen within the idea of ‘fusion fallacy’, arguing that the fusion of the two systems was purposed for practical matters. It notes that they rather run side by side, as separate systems, both with clear views. Walsh v Lonsdale opposes this concept. The case held that the distress was legitimate, even though there was not present a common law lease, and gives in to the sense that equity and the law have been compiled into one set of principles and there is no distinguishing between legal and equitable leases. In the contrary, in Chan, the court clearly stated that an equitable interest is not recognized as a legal interest, and supersedes Walsh. It shows, the intent of the court trying to ensure justice prevails by the inclusion of remedies. It raises the question whether the flexible nature of Equity can be enforced in the strict common law system, as although Lord Reid purports a freedom to common law, it still rests heavily upon precedence and succinctness. It shows that the objective of Equity is to complement the law rather than replace it or subsist within it.

This belief has been mirrored within the common law system with judges deferring that Equity does in fact fuse with common law. Lord Denning illustrated in Errington v Errington that the law and Equity have seemed to of fully merged. Similarly, many remedies that were viewed as exclusive to Equity, namely specific performance, have been incorporated into common law rules. An overlay can especially be seen within contract and Equity. Equity has the ability to set aside contracts, where the consent of a party to the contract has been impaired or vitiated by factors such as misrepresentation or undue influence and equity can enforce some promises that the common law cannot. Furthermore, the doctrine of estoppel can be litigated through equity or at common law. However, in Amalgamated Investment, Denning argued that the maxim of estoppel had become ‘overloaded’ and chaotic. Lord Steyn tried to demonstrate separation and coherence in the India Steamship case where he referred to estoppel by common law and estoppel by equity as separate entities bound by an ‘overarching principle’. This reiterates, how the overlay of equity and common law have a clear terrain of application and work alongside one another, rather than exacerbating the point of tension. Also, that they still are separate foundations that share common principles.

Reid clarified judges have to have concern to common sense, public policy, and legal code when sculpting the progression of common law. Equity is important as an overlay to that, as it gives an insight into considerations that are not apparent within statutory law. Equity, therefore, is an adaption of a legal doctrine, consistently adjusting to prevent the law from becoming permanently stuck into a set of unyielding and pernicious regulations. Importantly, this does not discredit the common law as it remains the initial source of legal decisions by the courts. Equitable doctrines are introduced only in the case that it would be unconscionable to hold up the common law judgment. For example, Equity may intervene where the application of the rule of law would cause injustice and prevails over common law, i.e. it could consider factors revolving around a mortgage payment and on the facts might allow it to be redeemed, despite the fact the actual redemption date has passed. In Patel v Ali, the requirement of the seller to move would have been an injustice and required intense hardship, so the court exercised discretionary measures.

Equity maxims are not considered law but instead are simply guidelines when coming to a decision. Equity principles at their core revolve around intent rather than form and distinguish themselves as a concept from the cutting-edge nature and substance of contract and common law. The notion of ‘conscience’ exists within Equity, whereas the common law acts in rem, and again draws a clear line between the two systems. This clearly sets-up Equity’s ‘role’ and purpose in the modern ruling and why it is necessary alongside the common law. It should be noted that in modern law, Equity does not offer complete discretion but like the common law has built a set of principles that allows an application of discretion. It could be argued that Equity to survive in the current legal landscape has had to adapt characteristics of its counterpart common law, with its procedural use of precedents and more set principles. However, Equity still possesses a greater amount of flexibility, which Denning echoed in Eves, where in his judgment he made note to the inequitable nature of the claim and that equity is an institution that is still ‘child-bearing’.

It can be seen that certain aspects of the law, including trusts and remedies, could not possibly exist without Equity and provide an integral relief when one can not be found in the common law courts. Equity has been able to intervene and contribute to specific areas of the law and shows that rather than hinder it, the ‘freedom’ of both systems allows them to enable one another. Equity has also seen an expansion to wider grounds. In Pennington v Waine, the judge’s decision stemmed from unconscionability and saw an equitable exemption to the requirement for a whole transferral of property in law. Also, particularly in the complexity of modern-day civilization, a lot of actions are dependent upon the concept of trust, which is the most common branch of Equity. The common law does not recognize the beneficiary of the trust and though Equity concurs with the law it still ensures a further level of justice through the recognition of the beneficial owner as well. Additionally, through equity’s maxims, it has conceived the notion of secret trusts with the intention of preventing fraud that would otherwise be enabled by statute or common law, thus they would obviously not be enforceable in common law. Equity has the ability to mould and intervene where the response of common law would be one of an undue nature.

In conclusion, there is little tension between equity and common law as legal systems. Instead, they complement one another and the courts recognize and understand the nature of equity and its maxims. Equity at its centre acts as a legal conscience whilst still enforcing common law precedent, that too is developing. That is why it is important that the two remain separate but function with mutual understanding of equitable and legal principles, so equity has the ability to conciliate where the law cannot. Ultimately, equity has a stable and specific role within the contemporary legal procedure and its adaptive and resolving nature is integral to the function of developing the law.

It is an inaccurate belief by abiders of the common law system that ‘judges play the central role in all legal systems.’ Religious, customary, and socialist legal systems and traditions, for example, do not revolve around judge-made law as common law does. This essay, however, will only deliberate the essential differences between common law and civil law systems. Comparisons will be made of the People’s Republic of China to the Australian legal system, assisting with the analysis of the statement. It is the two system’s individual reliance on either codes or jurisprudence, though, that explains how erroneous the statement is.

The Common Law System

Common law systems are some of the few legal systems in which judges play a central role. In common law, judicial rulings and past legal precedents guide judges in formulating decisions in cases.[footnoteRef:1] Margaret Fordham describes judges as ‘[playing] a pivotal role’ in the system, ‘molding and changing the law through case-by-case development.’[footnoteRef:2] This allows the legal system to be more comprehensive, focused, flexible, and to seamlessly develop with societal requirements and emerging areas of law.[footnoteRef:3] In Angelo Dondi and Geoffrey C. Hazard Jr.’s article, the role of judge in common law is described as managerial. While during proceedings Dondi and Hazard admit that judges act as passive moderators, permitting rival advocates to present their arguments, it is the judge that makes the ultimate decision – holding the potential to impact the law surrounding the case.[footnoteRef:4] The Australian Constitution also supports the concept that in common law systems, judges are significant influencers. [1: Angelo Dondi and Geoffrey C. Hazard Jr., ‘Responsibilities of Judges and Advocates in Civil and Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits’, Yale Law School Legal Scholarship Repository (Web Page, January 2006) p. 60-61 < https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://www.ecosia.org/&httpsredir=1&article=3371&context=fss_papers>] [2: Margaret Fordham, ‘Comparative Legal Traditions – Introducing the Common Law to Civil Lawyers in Asia’, National University of Singapore (PDF, 2005) p. 3 ] [3: Ibid.] [4: Angelo Dondi and Geoffrey C. Hazard Jr., ‘Responsibilities of Judges and Advocates in Civil and Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits’, Yale Law School Legal Scholarship Repository (Web Page, January 2006) p. 60-61 ]

The Constitution of Australia, Australia being a country following the common law system, corroborates with the statement that in its legal system ‘judges play the central role’. Chapter three, section 73 of the Constitution of Australia states that;

“The High Court shall have jurisdiction… to hear and determine appeals from all judgments, decrees, orders, and sentences… and the judgment of the High Court in all such cases shall be final and conclusive.

But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter…”[footnoteRef:5] [5: ‘Commonwealth of Australia Constitution Act’, Parliament of Australia (Web Page, n.d.) Chapter 3, s (73) < https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution>]

It is thus clear the power in which the judges, who control the High Court, hold. Judicial decisions in the High Court are uncompromising, adding to the comprehension of the law the case is involved with, as a result of the Constitution. Parliament also maintains limited interference in law surrounding cases – providing judges with free range on the condition they abide by the statute.[footnoteRef:6] This is evident in the case of Mabo & Ors v The State of Queensland (1992) 175 CLR 1. [6: Margaret Fordham, ‘Comparative Legal Traditions – Introducing the Common Law to Civil Lawyers in Asia’, National University of Singapore (PDF, 2005) p. 2 < https://law.nus.edu.sg/asli/2nd_asli_conf/pdf/margaret2005_01.pdf>]

In the Mabo case, the High Court of Australia considered the change in social and political circumstances and exercised their power. Native land rights were brought to question and the High Court held that ‘the acquisition of Australia in the name of the British Crown did not necessarily extinguish native title, overruling ‘the common myth of terra nullius’ that was older than the Constitution.[footnoteRef:7] They were nevertheless heavily criticized for acting ‘legislatively’; for many believed indigenous rights to be an issue requiring the focus of the legislature, not of the courts.[footnoteRef:8] Justice Michael Kirby, however, was adamant that; [7: Michael Kirby, ‘In Defence of Mab’, Australasian Legal Information Institute (PDF, 1994) p. 54 < http://www.austlii.edu.au/au/journals/JCULawRw/1994/3.pdf>] [8: Ibid, p. 61.]

“If the judges of the common law did not so act, the law would fail to adapt and change to modern society… Strict and complete legalism, giving effect to simple views concerning the separation of powers doctrine, has become entirely inappropriate to a modern common law system. This is especially the case where the system operates under a written constitution designed to endure indefinitely.”[footnoteRef:9] [9: Ibid, p. 68.]

Thus, to take Margaret Fordham’s view that a judge’s role in common law systems revolves around ‘molding and changing the law through case-by-case development’[footnoteRef:10], the High Court obeyed their duty in the Mabo decision. The judge’s involvement was essential to the evolvement of Australia’s common law. It is therefore clear how judges play a central role in common law, unlike the civil law system. [10: Margaret Fordham, ‘Comparative Legal Traditions – Introducing the Common Law to Civil Lawyers in Asia’, National University of Singapore (PDF, 2005) p. 3 ]

The Civil Law System

Civil law systems are some of the many legal systems in which judges do not play a central role. In civil law, written codes are formulated to comprehensively cover every area of law. Statutes contribute to the codes as principal sources of law and jurisprudence is far less significant.[footnoteRef:11] The codes are written ‘at a high level of abstraction, and are based on principals derived from the scientific study of legal data.’[footnoteRef:12] The codes, as well as the statutes, are ‘highly systematic’. This is particularly evident not only in the current Chinese system but throughout Chinese history. [11: Margaret Fordham, ‘Comparative Legal Traditions – Introducing the Common Law to Civil Lawyers in Asia’, National University of Singapore (PDF, 2005) p. 2 < https://law.nus.edu.sg/asli/2nd_asli_conf/pdf/margaret2005_01.pdf>] [12: Ibid.]

Throughout history, China developed codes of punishment to ensure all were equal before the law, and all principles of law were unchanging; inspired by the Legalist school.[footnoteRef:13] The Da Qing Lii Li and Da Qing Hui Dian are just two examples of codes from the Qing Dynasty to which this form of thinking was initially adopted. The former code consists of a list of 3987 punishable offenses, whilst the second delineates the functions, duties, and powers of departments of the constitution and administrative government.[footnoteRef:14] The codes were detailed and indisputable, acting as a guide during application. The present People’s Republic of China still utilizes similar codes, but due to having a developed law, the roles of judges in civil law are quite different to that of common law systems. [13: Poh-Ling Tan, Asian Legal Systems: Law, Society, and Pluralism in East Asia (Butterworths, 1997) p. 16.] [14: Ibid, p. 18.]

The responsibilities of judges in civil law greatly contrast that of common law. Margaret Fordham describes judges in civil law systems, in theory, as having ‘a purely interpretive role, within which doctrinal guidance leaves little room for individual discretion.’[footnoteRef:15] This is evident in the Constitution of the People’s Republic of China. Article 5 subsection 3 states that ‘No law or administrative or local rules and regulations shall contravene the Constitution,[footnoteRef:16] and by extension, the codes. This displays how rigid the civil law system is; judges do not have the same freedom as common law judges to evolve law when necessary. Angelo Dondi and Geoffrey C. Hazard Jr. argue, however, that this does not change the significance of the role of judges in civil law systems. [15: Margaret Fordham, ‘Comparative Legal Traditions – Introducing the Common Law to Civil Lawyers in Asia’, National University of Singapore (PDF, 2005) p. 2 < https://law.nus.edu.sg/asli/2nd_asli_conf/pdf/margaret2005_01.pdf>] [16: ‘China Constitution’, Servat.unibe.ch (Web Page, 14 March 2004) Article 5, s (3) < http://www.servat.unibe.ch/icl/ch__indx.html>]

Despite being ‘a purely interpretive role’,[footnoteRef:17] civil law judges are largely involved in the proceedings of the court. Traditionally ‘it was thought to be up to [the judge] to determine the matters in dispute, identify the necessary evidence, schedule the necessary intermediate and final hearings, and eventually formulate the judgment according to the law and the proof.’[footnoteRef:18] However, the level of involvement of a judge in court proceedings does not directly relate to the centrality of their role in their system. The law itself has already been developed through the codes – it is only through the application of the codes and an obligation to find answers that a judge is warranted. In common law systems, advocates generally take on this position – allowing judges to focus on the gaps between laws and create legal precedent. [17: Margaret Fordham, ‘Comparative Legal Traditions – Introducing the Common Law to Civil Lawyers in Asia’, National University of Singapore (PDF, 2005) p. 2 < https://law.nus.edu.sg/asli/2nd_asli_conf/pdf/margaret2005_01.pdf>] [18: Angelo Dondi and Geoffrey C. Hazard Jr., ‘Responsibilities of Judges and Advocates in Civil and Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits’, Yale Law School Legal Scholarship Repository (Web Page, January 2006) p. 60-61 < https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://www.ecosia.org/&httpsredir=1&article=3371&context=fss_papers>]

Concluding Thoughts

It is evident that the statement pertaining to the idea that ‘judges play the central role in all legal systems’ is incorrect. In common law systems, the role of a judge is central to the advancement of law. This centrality does not exist in civil law systems due to the laws having been finalized. The statement is therefore inaccurate; for the civil law legal system does not revolve around judges, thus the idea that the concept applies to ‘all legal systems’ is discredited.

Bibliography

1. Poh-Ling Tan, Asian Legal Systems: Law, Society and Pluralism in East Asia (Butterworths, 1997) p. 16-18.

Reference List

1. Commonwealth of Australia Constitution Act’, Parliament of Australia (Web Page, n.d.) Chapter 3, s (73) < https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution>
2. China Constitution’, Servat.unibe.ch (Web Page, 14 March 2004) Article 5, s (3) < http://www.servat.unibe.ch/icl/ch__indx.html>
3. Angelo Dondi and Geoffrey C. Hazard Jr., ‘Responsibilities of Judges and Advocates in Civil and Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits’, Yale Law School Legal Scholarship Repository (Web Page, January 2006) p. 60-61 < https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://www.ecosia.org/&httpsredir=1&article=3371&context=fss_papers>
4. Margaret Fordham, ‘Comparative Legal Traditions – Introducing the Common Law to Civil Lawyers in Asia’, National University of Singapore (PDF, 2005) p. 1-3 < https://law.nus.edu.sg/asli/2nd_asli_conf/pdf/margaret2005_01.pdf>
5. Michael Kirby, ‘In Defence of Mab’, Australasian Legal Information Institute (PDF, 1994) p. 54-68 < http://www.austlii.edu.au/au/journals/JCULawRw/1994/3.pdf>

Introduction

Common law as we know it, also known as case law, can be defined as the system of law that is based on judges’ decisions and on customs rather than on laws that are written. In other words, it is comprised of a set of unwritten laws based on precedents recognized by the courts. It is also important to note that it remains a source of the UK’s unwritten constitution. Its purpose is to create order for constant principles to be applied so that similar facts in different situations or cases produce a similar outcome. In relation to this, judges are expected to make future choices that will guarantee consistent treatment relating to binding precedent. This is especially relevant when each party in a specific case disagrees on the legality of particular laws and when following past reasoning. This is known as stare decisis. Moreover, common law differs immensely from civil law, as the latter is more of an inclusive, codified set of legal statutes that are made by legislators. The purpose of civil law is to create order and decrease any bias as it is frequently updated. With all this said, it is important to understand how and why codification in the common law is the antithesis of what the common law tradition is all about. This paper will focus on this point by first looking into comparative law as a base to then go on to analyze and compare the English and the American jurisdictions, which will then lead to understanding codification in relation to common law.

Comparative Law and Comparative Legal History

Comparative law looks into comparing the legal systems of different countries, and even the differences within a nation itself. This could also be done on a large or smaller scale throughout the world. The main method to implement this comparison is called macro comparison. Here, instead of putting all of one’s energy into a single concrete problem and finding its possible solutions, research is made to handle legal materials and procedures to resolve disputes (or the roles of those engaged in the law). Its main goal is to acquire knowledge, distinguishing common from civil law. In fact, when looking at the various universal legal systems, many solutions are found, much more than one person could find on their own. That is the real advantage of this system. This method looks at all ways of settling disputes, contrary to the micro comparison approach, which looks at specific legal problems. Comparative legal history could be seen as equally important to define, as it is viewed as the metamorphosis from one tradition into another over time. This is related to ways of approaching the law and how different nations do this. Moreover, this is an important notion to know, especially since the comparison and the evolution of the legal jurisdictions of the two chosen countries have impacted the way their system is today, and what happened as a result of them being affected by codification. The main aim of this concept is to look at the changes that has happened over time, witnessing how traditions and assumptions have guided a legal system and how it has been questioned and reformulated in the long run.

In relation to this, different theories have been developed in order to be discussed regarding codification. The first is the most conventional and simple approach in comparative law that looks at codification and states that it is historically and geographically widespread in the civil law system. In other words, this theory looks at common law as uncodified, since it is based on case law and jurisprudence. This theory would then support the idea that codification is the antithesis of common law. Another theory contests the clear black and white difference between common and civil law as discussed in the simple thesis. Here there is the idea that codification exists in both common and civil systems, but that it doesn’t exist to the same extent. Getting deeper into this notion, some theories see more and more codification in the common law system and view civil law leaning more and more towards judges being more active in decisions. They are therefore leaning towards both legal systems functioning effectively while using codified laws. These theories can somewhat make one doubt the notion that codification and common law do not go together. In fact, these theories clearly show that there is not one correct way to think about this, as they all somewhat contradict each other. One must look at the legal history of each nation to fully be able to compare it to another and to understand its relation to codification. Advocates of codification in the common law argue that it would increase the legal macro comparison as discussed above and since codification is what mainly stands out from the difference between common and civil law. Also, looking into common law, the history of specific countries could be relevant since there has been debates over a European civil code in the past, for example. Once again, codification can be seen as relating to clear and structured regulations and set rules about specific topics that are comprehensive. It relies on a physical code that has authority and needs to bind judges to that code while also giving them the liberty to interpret and fill in gaps where needed. The next part of this paper will now analyze the legal history in relation to codification attempts in Britain and then in the United States.

The United Kingdom – Focus: England

The UK follows the common law legal jurisdiction, therefore the decisions are related to judges, and precedent, meaning its motion is constantly changing. With that said, the thought of having a civil code within the common law prevailing system in England was considered for the first time during the reign of Henry VII, although it did not amount to much. Important figures such as Bacon, Sir Matthew Hale, and William Blackstone have attempted to change the legal system, but again no practical reforms were made. One reason why the efforts failed is linked to the idea that many in the English Parliament were conservative and did not want to deal with big reforms, as this was a political issue. As mentioned above, codification has been debated, and that for centuries in England. The works of Jeremy Bentham most specifically (one of the most important advocates of codification in many parts of the world) moved this idea along toward a more theoretical standard. It is important to note that even though codification failed, it is a significant part of the country’s history, and in turn also explains the relationship between codes and common law. The first reports of codification in the UK have been seen around the 1900s. Many were concerned with the issue that commercial laws were not accessible to everyone because of how large and confusing they were. Because of these worries, codification can be found in a few pieces of the UK legislation, like the Sale of Goods Act 1893. Since it used to be overseen by jurisprudence, English commercial law has drastically changed because of this, and these codes started to influence commercial law by providing a base. The first UK code arrived with the enactment of the Arbitration Act 1996. The purpose of this act was to be clear and representative of the main principles of English law of arbitration in a logical way that made sense. In fact, the goal was also related to fixing and clarifying problems that were in the more traditional English case laws. In addition, this act was deemed to have improved London’s appeal, as a center for arbitration. Another significant piece of codification in the UK was the Tax Law Rewrite, which had the goal of consolidation. It was significant because codification was clear, as there were titles and headings. It was put into place after how irritating and difficult it was to understand tax laws before 1995. In addition, the Companies Act is the newest piece of code in the UK, which came into force in 2007. Here, there was the need to modernize company law (which used to rely on 19th-century bases) and to keep up with other laws. The Companies Act is the most comprehensive one as it includes over 1500 sections and 8 schedules. With all of this said, England was still considered to have given great contributions toward codification. One important feature to notice is that within the common law system of the UK, British India was successful at codification, as it was argued that the English wanted to test out the civil system there first. Despite this, the UK can be seen as a concrete example of how codification is the antithesis of common law, as codification did not predominate the legal system.

The United States of America

Like the UK, the United States follows a common law system. Codification in the States began around the 1600s and the development into producing codes were seen less than 20 years later. Within colonial laws, the state of Massachusetts had developed a code, which was one of many other appearances of codes, as there were a lot being produced in the colonies and inspired by that main one. After the Declaration of Independence in 1776, the law showed itself as confusing and did not make much sense, since it included colonial laws, English laws, and some laws of new states. After the American Revolution, there was still a lot of confusion and complexity in the law, as it was very difficult to understand. That is why codification seemed to be a plausible solution, with the state of Louisiana fully becoming a civil law state. In fact, since the latter has been subject to French and Spanish settlements, the French codification had largely influenced Louisiana. In relation to this, Livingston (a New York lawyer) had written a civil code, which was inspired by the Romans and the French. This code was comprised of single articles and was very comprehensive. Throughout the States, there were huge efforts for standardization of a legal system across the country, however, Louisiana remained codified. This in itself is a prime example of a mixed legal system, perhaps even raising questions about whether common law and codification are two separate concepts or if they can coexist. Furthermore, it is important to note that the United States had early thoughts of codification as a legal reform. In fact, it started to be apparent in South Carolina as a working legal framework, however in the end, codification failed despite the growing efforts and the codification movement moving stronger and having more support across the whole country between the 1930s and 40s. Massachusetts was a prime example of the encouragement toward a codified system of law. Individuals were so keen on having a system of law that was clearer that they supported codification in the common law. Their intention was not to completely erase the common law system, but to include some kind of codification, however ultimately, the task was rejected. Moreover, in the state of New York, the idea of codification had spread, and some success could be found here. Perhaps the most important figure in the American efforts towards codification is David Field, who was a practical lawyer (as he enacted a proposed civil code for many western states), and who operated in line with Bentham’s works as seen above in the UK. In fact, arrangements had been made for the New York constitution to include requirements allowing common law codification. Despite these tangible efforts, the Civil War led to a significant decrease in interest in codification after 1865, as there were bigger problems people needed to deal with. Since codification was slowly dying, the more traditional common law rules rose in importance once again. Some argue that the work towards a codification was not for nothing and that the success rate was impressive when looking at the number of actual enacted codes. There has been more success here than in England, for example. The arguments above all summarize why one would think that codification is the antithesis of common law since most efforts that were made to codify did not work out in a common law system like the United States. The main exception was Louisiana, as per its unusual history and its uniqueness, which allowed it to adopt a civil/codified structure. One could perhaps even argue that it shows there is opportunity for the success of a codified system in a common law country.

Quick Comparison

In the end, the United States saw more practical results than the United Kingdom in terms of codification, since they saw some actual enactments of civil codes (and of course Louisiana). The latter had the influence of Bentham, who was a theoretician, while the US received Field’s weight, who was more of a practical person. These two figures and their values showed up and reflected the way codification tried to make its way in the common law system in each country. On the other hand, both countries experienced a wave of desiring a codified system as a result of confusing laws that were dominating, both failed, and both have exceptions (for example Louisiana in the US, and British India in the UK).

Codification and Common law – Failure?

With all the information discussed above, one can see that despite the efforts by the English and the Americans, codification failed overall in their common law jurisdictions. In other words, one can state that codification is the antithesis of common law in general, even though there has been some success regarding implementing codes (the state of Louisiana for example) in the two common law countries analyzed in this paper. Other arguments as to why codification did not work out in common law legal systems include that the application of common law methods to the interpretation of a code would put a stop to the law’s development since common law is always changing and evolving. This idea states that codes would disrupt the traditional legal sources in the common law and change the way of solving problems. The real difficulty would be when the code does not pertain to a specific issue (in other words, no answer in any article), whereas in common law, the solutions are found from judges and jurisprudence. Another difficulty of codifying principles and norms that are originated from judge-made law is related to the notion that judge-made law represents a legal norm, which is complex, and so applying a logical, organized and analytical code will be hard since it does not fit easily within the common law structure of doing things.

Conclusion

Finally, the main reason there is the idea that codification is the antithesis of common law is directly related to the facts discussed throughout the paper. In other words, one can see the determination, energy, work, and struggles of attempting a codified set of laws in countries like the United States and the United Kingdom, and how they have failed, having common law prevailing. One can argue however that there are exceptions to this rule, as codification was able to break through a widespread common law system, such as the state of Louisiana in the United States or even British India. Over the world, other exceptions are present, such as the province of Quebec in Canada, a widely spread common law country. This moves forward the idea that common law and civil law are not so far from each other after all.

Roman-Dutch / Common law

The introduction of Roman-Dutch law into Namibia is closely interconnected with the political and historical advancement of Namibia, after the occupation of the territory by South African troops in 1915, German law continued to be in force except for such laws as were found obligatory to be retracted under martial law. Roman-Dutch law was officially acquainted as the common law of the territory by Proclamation 21 of 1919, (S.W.A Gazette, No. 25 of 1919) which provided inter alia that Roman-Dutch was to be pragmatic as in the Province of the Cape of Good Hope until the promulgation of the territory. As the Republic of Namibia attained liberation in 1990 the common law remained valid in accordance with the constitution [Amoo, 2008] [Geraldo, 2007].

Common law rules are to a high gradation today, derived from proceeding pronouncements of courts in similar past cases, when a Judge or person wants to determine the riposte to a legal question he analyses past judicial decisions and analogies from them to the facts of the current case. If conversely the court finds that the current dispute is profoundly dissimilar from all aforesaid cases (called a “matter of first impression”), and legislative statutes are either silent or ambiguous on the question, judges have the power and duty to resolve the issue (one party or the other has to win, and on divergences of law, judges make that verdict). The courts might also look at cases from other countries with constitutions or principles of government similar to those in Namibia, a member of the public who is trying to foresee what the Namibian courts might decide in a new circumstance might want to read cases on comparable issues from other countries [Amoo, 2008, p. 62)] [lac.org.na].

Common law includes the Supreme court, the High Court, the Labour Court as well as regional Lower Courts, district and sub district level magistrate’s courts, which most engender past written rulings in Court decisions which are all communal documents and give the judge who resolves the case to provide a motive for the verdict as well as the outcome of the case [Canada: Immigration and refugee Board of Canada, 2012] [Ibid. lac.org.na].

To conclude unlike other laws the common law must follow the Namibian constitution and can be overruled by legislation ratified by Parliament as long as the statute is in line with the Namibian constitution [Ibid. lac.org.na].

References:

1. Amoo, S. 2008.”Sources of Law” In Amoo, S (Ed.) An Introduction to Namibian Law, Windhoek: Macmillan Education Namibia Publishers, p. 60
2. Geraldo, G. 2007. Researching Namibian Law and the Legal System. Available at www.nyulawglobal.org; last accessed on [16 February 2020]
3. https://www.lac.org.na; [accessed 19 February 2020
4. Canada: Immigration and refugee Board of Canada, Namibia: customary and common law including matters of inheritance; how conflict between the two systems of law are resolved, 14 August 2012, NAM104143.E, available at: https://www.refworld.org/docid/5053390d2.html

As an instrument, common law has been in use in England since the Norman conquest in 1066. The Irish legal system is based on the English common law tradition. Its dominance was consolidated after Oliver Cromwell’s military campaign in Ireland between 1649 and 1652. Society has changed immeasurably since 1066. It is also vastly different in 2019 to how it was in 1652. It is vital that the law adapts to reflect these changes. This is possible with a common law system, as amendments to legislation are not required in order for judges to react to societal changes. The area of tort law is one in particular which has seen huge changes. As per McMahon and Binchy, human beings, as social creatures, come into contact and conflict with other human beings. With changes to society, these conflicts have increased in both number and complexity. Lord Radcliffe stated “the common law is a body of law which develops in process of time in response to the development of the society in which it rules”. That is not to say that some of the developments are not controversial. Therefore, Lady Hale’s statement in the Woodland v Essex County Council regarding the dynamic nature of common law while warning of the dangers it can face is extremely important. This paper argues that it is societal changes that drive common law amendments as, due to its dynamic nature, it can react to social transformation before the legislature can. However, as some shifts in society are occurring so rapidly, there is the danger that new precedents are set as a reaction, without considering the underlying principles sufficiently. It appears that the Irish judiciary system is more cautious to societal change than the UK system and, in fact, often adopts their new precedents once they have been established for some time.

“The life of the law has not been logic, it has been experience”. While Oliver Wendell Holmes’s statement on common law is from 1881 it is still valid today. Common law depends on the experience of judges to ensure that it is interpreted correctly. It also depends on these judges to assess if the previous precedent is still applicable based on societal changes. Donoghue v Stevenson can be viewed as the seminal case that laid down the foundation for the modern tort of negligence in the UK, where it established the neighbor principle, thus extending the tort of negligence to proximity. Prior to this, tort cases were considered either trespass or trespass on the case, where the injury had to be direct and foreseeable. The House of Lords, in their judgement in Donoghue v Stevenson produced a duty of care to end-users or end customers in the eventuality of faulty goods. The precedent set in the Donoghue v Stevenson was adopted into Irish law in the judgement on Kirby v Burke Holloway & Co. While in 2019, it appears obvious that liability for defective products should extend to end-consumers regardless of who purchased the product, this was not the case in 1932. The lawyer acting on behalf of the plaintiff, Walter Leechman, had acted as the lawyer for the plaintiff in a similar case, Mullen v Barr, several weeks prior to the Donoghue case, and that judgement had found in favour of the defendant. The judgement in Donoghue is therefore ground-breaking but dissenting as two of the five judges found for the defendant. Lord Buckmaster cited Lord Anderson in Mullen v Barr, who said “it would seem little short of outrageous to make them responsible to members of the public for the condition of every bottle which issues from their works. It is obvious that if such responsibility attached to the Defenders, they might be called on to meet claims of damages which they could not possibly investigate or insure”. This paper argues that following on so quickly from the Mullen case, and without existing legal precedents to follow, the Donoghue judgement could be considered, at the time of issuance, as being inconsistent with underlying principles. However, Lord Atkin, accepting that society had changed to the extent that the end-user of products was not always the purchaser of the item, acknowledged that the neighbor principle was required. As evidence of the way common law adapts and grows within tort law, based on underlying principles, is examined below.

In Dorset Yacht Company Ltd v Home Office, Lord Reid stated in his judgement that the passage on ‘who is my neighbour?” in Lord Atkin’s judgement should be considered a statement of principle which should apply in cases unless there is a valid reason for its exclusion. This judgement evidenced an incrementalist approach to the development of duty of care, consolidating a previous ground-breaking judgement into a principle. In Anns v Merton London Borough Council, Lord Wilberforce’s judgement, in the House of Lords, went a step further and established a two-step test in determining whether or not a duty of care is owed. Firstly, the court would need to ascertain if there was a sufficient relationship of proximity at which prima facia duty of care applies. If this can be answered in the affirmative, the second test is whether there are any considerations which limit or negate the duty of care. However, the Anns test faced criticism for being overly expansive, which is a danger of the common law system. Subsequent cases, aware of this danger and, perhaps wanting to return to a duty of care based on underlying principles coupled with cautiousness, overturned the decision in the Anns case. This paper contends that tort law must be developed cautiously, based on underlying principles, particularly as the courts are reluctant to open the floodgates to claims, which might happen if judges bring in overly expansive decisions. While a societal need might exist for the law to be expanded or revised, courts must be careful to ensure that the amended law is suitable for purpose and not merely reactionary. Reactionary precedents might do exactly what the courts strive to avoid: opening the floodgates to a myriad of claims.

Eoin Quill details the issue the neighbor principle has had with competing interests with negligence vis-à-vis public policy, . The definite ruling on negligence in Ireland, endorsed by the Supreme Court, is the Glencar Exploration p.l.c. v Mayo County Council. Unlike the Donoghue case, some cases have circumstances that have never been before the courts before, which thereby require careful consideration.

According to Lord Denning, Chapman v Honig is one such case where, to his knowledge, the facts had not been presented before a court before. He believed a wrong had been done and, while circumstances of the case were unique to the UK judiciary, the court had to make a decision on whether or not they should redress the wrong the plaintiff suffered. Lord Denning agreed with the judgement of Judge Baxter in the lower level court while his fellow judges dissented, reversing the lower courts’ decision and finding for the defendant, with no leave to appeal. Both Pearson LJ and Davies LJ found that the eviction notice had been served vindictively but considered this to be an irrelevant fact. This judgement is still the current position in the UK on retaliatory evictions, irrespective of the reasons behind them. This paper argues that the restriction of disallowing appeal to the House of Lords, imposed by the judgement in this case, has inhibited the dynamic instrument of common law with the court acting overly cautiously, resulting in a decision that is heavily criticized and but with no appetite from the legislator to amend it.

In many cases, judgement made in the lower courts are overturned on appeal, or at Supreme Court level. Higher level courts are not bound by decisions from the lower courts. However, lower courts are bound by decisions from the higher courts. If, for example, the Supreme Court makes a binding decision, even if it is universally considered to be a wrong decision, the lower courts cannot overturn it. The danger in this instance is that an erroneous precedent will have been set. While the experience of judges that Holmes values is important, judges are human beings. The common law system relies on judges who are humans with all the biases and flaws associated with being human, which might influence their decisions. Many judgement are contentious. One such judgement was the McFarlane case, which Lord Steyn admitted was a very unpopular decision, savaged by some and heavily criticized by others. Many are overturned by higher courts. As Walsh J stated, “judge-made rules and, as such, can be changed and altered by judges”. The danger is that one person’s opinion and interpretation of both the law and society can extend the law beyond what is deemed acceptable. Some judgement in higher courts are dissenting, indicating that even the most experienced judges have conflicting opinions. judge-made rules and, as such, can be changed and altered by judges. This paper contends that judges need to ensure that all judgement are based on underlying principles, thereby avoiding either making judgement that result in unbridled growth or possible erroneous interpretations of law.

One criticism of the common law system is that it is dependent on unelected judges to formulate new laws through precedents. Some people might feel that the judges are part of the political system and are therefore biased by the Government of the day, which is not the case. All judges in Ireland are understood to be make decisions independent of political bias. This paper argues that this political impartiality, combined with the experience that Holmes states judges to have, means the common law system is a fair one, reflecting the society of the day. This is not the only criticism of the common law system in Ireland.

The Constitution is Ireland’s primary source of law. This has the disadvantage of limiting the common law process and inhibiting judges from making some judgement as a conflict might arise between both systems. According to Charleton J., this has resulted in a situation where judges can develop existing laws but are unable to make new laws. As legislation is not updated in line with societal changes, this paper argues that the restrictions on common law due to a conflict with the Constitution adversely impacts the judicial system in Ireland. It impedes the dynamic aspect of the common law system.

Ireland is as a small jurisdiction, thus Irish judges might find themselves reviewing cases from other common law jurisdictions for guidance. The UK is one such source and Irish court have adopted many of their decisions, as seen earlier in this paper. Irish courts also consider judgement in other common law jurisdictions which share the same heritage. While this is a solid approach, this paper argues that it is only in the past twenty years that Irish society has developed on a similar path to societies in countries that share similarities and history with Ireland, such as the UK and the US. Therefore, some of the precedents in these jurisdictions might not have been suitable to the Irish legal system. If Ireland continues adopting precedents from other countries, the judges need to pay careful consideration to ensure that the precedent honors the underlying principles of Irish law, irrespective of whether it does in the country it was established.

Law and legal studies project

In this essay I will be discussing the legal system in Ireland and will be including any observations and changes that I think should be made to this system. I will also be discussing how the Irish legal system will remain part of the European Union after Brexit happens.

The legal system in Ireland is an advanced system that involves formal laws. This means the law is independently existing and neutral and is enforced by the courts, police, and the state (notes). The Irish Legal System has three parts to it:

1. Constitutional Law
2. Statute Law
3. Common Law

Constitutional Law – The Irish Constitution (Bunreacht na hEirinn) contains a set of rules genuine exercise and transmission of political power. It defines the main organs of the State, provides for the rights of the Irish people, and sets out the Separation of Powers. It can also be amended if necessary (stephenwalshsolicitors.ie). The Irish Constitution is quite similar to the British Constitution because Ireland`s Constitution was set up when we were still under British rule. The Doctrine of Separation of Powers is made up of three parts:

I. Legislature – This contains the two houses of the Oireachtas, which are the Seanad and the Dáil. These two houses make the law.

II. Executive – This states that the Government of the Republic of Ireland cannot have less than 7 members and no more than 15 members.

III. Judiciary – The judiciary consists of all the court systems in Ireland. This includes the Supreme Court, Court of Appeal, and the High Court. All of these deal with discipline and breaking of the law.

There are two types of law, that is Civil Law and Common Law. The type of law we use in Ireland is common law.

Statute Law – Most of the statute laws come from the English statute law because Ireland used to be under English reign and thus when Ireland left English reign, it took some of these laws with them. Statute law is an act of legislation that commands something and is a special law or specific law expressed in writing (thefreedictionary.com).

Common Law – Common law is Judge made law. It is based around society and how common people feel the law should be made (thefreedictionary.com). It is an unwritten source of law. This type of law was brought over by the Normans and the King`s Council. It has grown out of the judges in Common law courts and courts of chancery and has evolved from there. The courts of chancery were seen as too narrow and rigid, which led to equity law. Previously Ireland was ruled by Brehon Law and slowly adapted to the way of the English law system after being under British reign for many centuries (https://www.ucc.ie/academic/law/irishlaw/guide/).

Written sources of law include Legislation, which is Acts passed by a law-making body. Delegated/ Subordinate Legislation is not enacted by Oireachtas itself. The Constitution are rules for legitimate exercise and transfer of political power. It defines the principal organs of Government and how they are controlled. The Constitution can also be amended if needed.

Observations and Recommendations: I think that our current legal system in Ireland is good, but we can definitely stand to make some improvements. Currently the Irish Legal System consists of the elements I have discussed above. I think it can be improved in the following ways.

1. Reducing Legal Costs – Observations: Legal expenses in Ireland are far too high in my opinion. In some cases Barristers earn more than the Taoiseach of Ireland and have considerably less overheads. (Solving problems in the legal system | Eolas Magazine). It is the taxpayers of the country who pay for these bizarre salary packages and it is unfair. Recommendation: To combat this, I suggest lowering the pay for barristers and in turn reducing the fees for legal representation.
2. Delays in Court – Observations: Court rooms can often be very over-crowded, and this will sometimes lead to a backlog in cases. Poor management can very often result in a build up of cases in court and people can get overwhelmed and fed up with the ever-dragging waiting time for their case to be heard. Recommendation: I think this can be fixed by sorting out a proper management system to stop overcrowding and delays in cases being heard (Flaws in the law: fixing the legal system (irishtimes.com).
3. Family Court Cases – Observations: Family court in Ireland is not great for many reasons. One of the reasons is that they never get the same judge each time they visit court and judges often have to rehear evidence multiple times. This wastes a lot of time for the families in court. Recommendation: A solution for this would be to keep the same judge for every one case as it would save time and money (irishtimes.com).
4. Criminal Justice system – Observations: The criminal justice system in Ireland has become very unfair sometimes to both offenders and victims. Often victims of crime do not feel like they are truly heard by the Irish criminal Justice System and this can lead to many victims not reporting crimes such as sexual assault or violence. The system can also be unfair to offenders in these instances as they often don’t get the punishment they deserve and therefore cannot show remorse for their actions (rte.ie). Recommendation: I would recommend that the Criminal Justice system be thoroughly examined in Ireland and give both victims and offenders a fighting chance for justice.

History of Ireland in European Union: In 1951, post-World War 2, France, Germany, Belgium, Netherlands, and Luxembourg ratified the Treaty of Paris. This was done to pool resources and ensure efficient distribution. In 1957 these same countries signed the Treaty of Rome to create development, expansion of economic activities and living standards. In 1972, Ireland, UK and Denmark signed the treaty to become members of the European Union. In 1981, Greece became a member of the EU and in 1986 Spain and Portugal became members as well as the Single European Act dismantling internal borders in the single market.

How the Irish legal system will remain part of the European Union in the future: EU law is above Irish national law. This means that Ireland can`t pass national laws that take away from EU laws. It means also that EU law can over-rule Irish law, even if that Irish law was enacted before EU law came into effect (citizensinformation.ie). EU law also has power over its citizens because even if a national law isn’t in place to protect the public, EU law must be must be obeyed. However, this is only the case if the EU law happens to be binding. After Brexit occurs, Ireland will be the only all English-speaking country in the European Union. This will make Ireland the perfect legal base for trade and communications with the USA. (Ireland as a legal base post Brexit | News & Views | Irish Echo) Conflict often arises when EU law clashes with Irish law because EU law is seen as superior and sometimes this does not reflect Ireland`s true beliefs as a country. This is really the only instance of conflict over EU laws and rules. EU membership has helped to bring peace to Northern Ireland in the troubled times so it is seen as a risk that this peace may be broken if Brexit is left with a no deal. This is something that the EU, the British and Irish governments must all agree on in order to keep peace between the North and South. Many grants and subsidies come from being a member of the EU for example, the Young Farmers Payment. These grants will continue to be provided by the European Union until such a time that Ireland decides to exit the EU (europa.eu).

In conclusion, it is my belief that Ireland and it`s legal system will be quite comfortable in the European Union in the future regardless of Brexit. Many of the laws and legislation in the EU are quite similar to those in the Irish legal system. Very little conflict arises between the two because EU law is a step above the national law in Ireland. The legal system differs in other countries that are part of the European Union and we are lucky as a country that our ethics are mostly the same as that of the EU. I imagine in places such as France that has a civil law legal system, it would be more difficult to get along with EU regulations (employmentrightsireland.com). This would be because it would mean that France may have to change some of its laws to be part of the European Union. This is a major inconvenience for them.

Referencing:

1. EU law, citizensinformation.ie
2. Flaws in the law: fixing the legal system, irishtimes.com
3. https://employmentrightsireland.com/irish-and-uk-employment-law-what-are-the-main-differences/#:~:text=The%20Irish%20legal%20system%2
4. https://www.ucc.ie/academic/law/irishlaw/guide/
5. Ireland as a legal base post Brexit | News & Views | Irish Echo
6. Solving problems in the legal system | Eolas Magazine
7. Statute law legal definition of statute law, thefreedictionary.com
8. Statute law legal definition of statute law, thefreedictionary.com
9. https://stephenwalshsolicitors.ie/2017/11/17/irish-legal-system-explained/https://stephenwalshsolicitors.ie/2017/11/17/irish-legal-system-explained/
10. Ireland in the EU | Ireland, europa.eu
11. How to create a better Irish criminal justice system, rte.ie

IRAC stands for Issue, Rule, Analysis, and Conclusion. Its main function is for legal analysis. At the first legal question is expressed, after that applicable law is given and then they analyze the fact and a conclusion is made.

In the IRAC method, there is a simple legal question that must be answered and it is also known as an issue. To spot an issue we need to be able to identify the facts that raised the issue. Law is very complex so adding one fact might change the entire scenario of the issue and there might be different laws for that. So With the IRAC method, we should be able to spot the issue.

After spotting the issue, you should articulate the rule. Analysis of the facts will not make any effect if you don’t have identified the rule which decides the legal meaning that regards something to the facts because rules and facts are linked with each other. We should write enough laws about the issue by which it will be easier to analyze the facts that have been provided.

After spotting the issue and articulating the law we need to compare them to form an application or analysis. For a fact, we need to look at whether the facts help to prove the rule or not. If a rule needs certain circumstances for the rule to be applied and if the circumstance is not applicable then it helps you to conclude that the rule doesn’t apply. So analysis is a simple and important method in IRAC.

After analyzing the issue and rule we conclude. The conclusion is a process where final calls are given out on the preceding case and it is reanalyzed by the judges. Conclusions are simply yes or no to the issue and rules. The conclusion should always be a potential result. This section of the IRAC states the issue and provides the final answer. We only can conclude if there is strong evidence or rule provided and there will be a logical conclusion.

IRAC is used for legal writing and complex legal analysis. It helps to reduce legal reasoning in a complex issue. So from the IRAC method, we can learn that we need to identify the issue based on patterns and find the suitable law that is relevant to the issue and by which we can make the statement of the rules. We should be able to explain how rules should be used and then after we need to analyze the fact and after that, we need to conclude how every issue that was pointed out can be resolved. It is a method of writing for answering complicated legal questions.