March 01, 2005

An Oxymoronic Legal System (published in Obiter Dicta – Univ. of Warwick's Law Journal

An Oxymoronic Legal System
By Guled Yusuf and Kasit Rochanakorn

The Common Law system, considered to be one of Britain’s greatest gifts to the world; has struck an oxymoronic rut. The essence of common law is that it is made by judges sitting in courts, applying their common sense and knowledge of legal precedent to the facts before them in accordance with society’s current needs as well as its trends. Ironically enough english law seems to be restrained. Reform seems to be a slow process in areas of great importance such as murder, the jury system, human rights, and the essentials of contract law. The legal system is appropriately lax to certain aspects of the law yet in other aspects reform is virtually impossible despite its immediate requirement.

Unlike codified systems, the system of precedent does not provide law enforcers with a definite, and straightforward reply to legal trials, rather, it is heavily interpretive. Precedent is meant to be shapeless, in the sense that laws are meant to constantly evolve in accordance with societal attitudes and developments. Yet, the evolution of law seems to have slowed down, and precedent seems to be falsely perceived as concrete, as well as unquestionable. The concept of precedent is meant to enhance the law’s evolutionary nature, yet its misuse has made it an anchor on numerous occasions binding the future to the past due to the legal systems traditionalism. A firm intent to live in the past as well as a fear of change in certain areas of law has prevented the english legal system from ameliorating.

Murder is widely considered the gravest crime, yet it remains a gray area in criminal law. Under present law one may be held liable for murder with an intent to cause death or grievous bodily harm. Lord Mustill in the Attorney General’s Reference states that “one could expect a developed system to embody a law of murder clear enough to yield an unequivocal result on a given set of facts, a result which conforms with apparent justice and has a sound intellectual base. This is not so in England, where the law of homicide is permeated by anomaly, fiction, misnomer and obsolete reasoning.” It is argued that people who intend to cause grievous bodily harm have chosen to run a risk of endangering life, thus the conviction of murder in our legal system lies in chance, which is disconcerting. It contradicts the commonly understood concept of murder that one must intend to kill. Also an individual should not be considered a murderer if they intend to injure sommeone, and a primary requirement for murder should be a complete disregard for murder rather than a partial, or possible one. The current law on murder should be reformed, and should most likely be modeled after the American system. The latter consists of different degrees of murder so that individuals with an intent to kill are not classified with individuals who are less liable. The law of murder is a great example of the legal systems antiquated thinking, as argued by William Wilson in “Rethinking English Homicide Law”, murder and manslaughter should be understood as two distinct wrongs rather than different degrees of the same wrong.
In contract law certain requirements must be fulfilled to make a transaction qualify as a true contract. One of which is consideration, Lush J. in Currie v Misa (1875) LR 10 Exch 153 defined consideration as:
"… Some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other."
Consideration though is nonexistent in numerous legal systems, since the doctrine of intention to create legal relations does suffice. It is a superfluous doctrine which is simply a remnant of the past. Lack of consideration is rarely a problem for promises made in the context of business relationships, due to the existence of an intention to create legal relations which legitimizes a contract. In most business contracts, there is consideration for both parties. Civil law systems do not require consideration, and numerous common law systems have abolished it as a requirement. In “Consideration Reconsidered”, K.C.T Sutton speaking of consideration states that “the main criticisms made are that the doctrine is not logically and uniformly applied but results in absurdity, inconsistency, and injustice, that its development is to be traced in fictions and evasions, that its technicalities and irrationalities are explicable only on historical grounds and it is in fact an anachronism, that it is out of touch with the market place and is disregarded in the business world….in short that it is unsatisfactory and unnecessary”.

Trial by jury, the participation of the common man in the administration of justice, represents the force that has established the habit of obedience to the law that we take for granted today. Yet, this fundamental legal mechanism is inherently flawed in numerous ways and has been the subject of various attempts at reform. After the first world war, the english legal system witnessed a virtual dissapearance of trial by jury in civil cases (a transformation that was later embedded in the legal system by the case of Ward v. James in 1965). Later attempts at reforming this vital apparatus included the abrogation of the unanimity rule and the Juries Act of 1974 which created the opportunity for a wider spectrum of the population to engage in jury duty. The need for reform essentially emerges from the five, but arguably more, issues of complication: the concept of jury-vetting, the problems of peremptory challenge, jury packing and the possible inability of the jury to fully comprehend the facts and circumstances of the case (which tends to be explicitly true in cases involving fraud). A major reform of this crucial component of the legal system should, and indeed must, include the abolishment of peremptory challenge since its origins can be traced to the earlier days when the death penalty was inflicted for many offences (unquestionably such a system was previously justifiable in favorem vitae – in favour of life – but currently, it only leads to discrimination on grounds of sex, race, class or youth), the introduction of special jurors for cases involving the complexities of fraud and the establishment of a new way of selecting juries. Realistically, the ordinary man is no longer suitable for the rigours of the complexities of the legal system and a new qualification of service is urgently required. Ideally, the jury list should be selected in a similar manner as the magistrates: with applications, recommendations, references and interviews to assess suitability.

The concept of a flawless legal system is nothing more than a concept, since every legal system has its flaws. Yet the English legal system has numerous fundamental frailties in areas such as; murder, the basics of contract law, and trial by jury. All of the latter are gravely important laws, which affect anything from day to day business, to the way defendants are judged in a court of law. There have been a multitude of attempts at reforming paramount laws, the true issue is the establishment of an effective medium. Lord Denning said it best in his work “What next in the Law”; “there have been Royal Commisions, Departmental Committees and Blue Books – all recommending reforms. But each turned down by the Government for one reason or another – or for no reason – just for lack of parliamentary time”. The core values of the english legal system namely its evolutive nature must be reinstated through a third chamber, or other means so that the legal system can return to its intended purpose rather than continuing in its current stagnant, and dormant state thus being an oxymoronic legal system.

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