15 May 2011
Common Law vs Roman Law - Tristan Hallam Explains
We are one of the few countries in the world who have a common law system. Those other countries such as India and Australia have imported the common law system or had it imposed upon them during the days of the Empire when Great Britain was forcing its will upon many countries in the world.
While our law therefore developed over time with an almost symbiotic relationship between the Courts and Parliament and generally evolved, other countries within Europe had in turn law imposed upon them by other invaders namely the Romans.
I have pondered on occasion, in particular when I am having difficulty getting to sleep, whether one is better under a common law system or under a Roman law system.The benefit of a Roman law system is that almost everything is written down.The Roman system therefore has countless books on what people can or cannot do and whilst there is some room for interpretation, it is very structured as opposed to the common law system.
By its very nature therefore I would suggest that there is less reliance upon the Court as there is simply less room for interpretation and I for one, am not necessarily sure that is a good idea.I say this as one of the great benefits of having a strong Court system is that it fits well with a democracy.
The mainstay of a democracy has to be an independent Judiciary. A classic example of this is what has occurred in Zimbabwe and the travesty and mess that has been caused by the Mugabe government. When a Dictator such as Mugabe takes control, the only realistic way of challenging him if politics fails, is through the Courts. If the Courts are not independent and therefore cannot see sense, but instead do what they are told by the Dictator, democracy breaks down.
It is only through the Courts that the “little man” can challenge the injustice and this is one of the reasons why I am always so concerned when governments try and challenge the access that people have to justice. It is for this reason that organisations such as the Citizens Advice Bureau are vitally important. Successive governments have reduced legal spending.
We no longer have a viable Legal Aid system in this country and the gap must therefore be filled by organisations, charities, whatever it might be, to provide everyone with basic legal advice and if necessary access to justice.It is only through these means that incorrect decisions from the government, organisations, those in power etc can be properly challenged. This is well known in the legal field.
An example of the response is the recent Legal Walk which is a charity walk that took place after work on Monday 16th May. Slater and Gordon Lawyers only had a small team as unfortunately the date clashed with a number of existing client functions but the walk itself was extremely well attended by everyone from our most high in the judiciary to even those in the government or civil service legal fields such as the Attorney General and Official Solicitor.
The money raised by this Legal Walk supports a number of legal charities which in turn provide advice and assistance to those who require it. An excellent idea, not one that should by any means stand in for the Legal Aid Scheme as indeed not only is it vitally important that a democracy has an independent judiciary, it is also vitally important that the government allow, via financial support, its people to have access to this justice.Failure to do so is one step further away from a democracy.
Tristan Hallam is a Principal Lawyer in Personal Injury in the London office of Slater and Gordon. If you or a member of your family has suffered an accident or injury call our expert personal injury solicitors on 0800 916 9046, fill in our short online claim form and one of our specialist personal injury team will review your compensation claim for free.
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