Flexibility and Consistency in Courts
Flexibility and Consistency in Courts
Introduction
Human beings believe that courts are the systems whereby justice can be served with judges making fair decisions in all cases. The work of the judges is to execute laws by following examples of decisions made before them in similar circumstances and not to make laws, as many people think. Judges are, however, guided by principles and if they concentrate on them, then courts can be both consistent and flexible.
Is it possible for the court to be both flexible and consistent?
Flexibility can be described in three different ways based on various concepts. Flexibility is seen as ‘an intrinsic feature of legal rules’. European law regimes were introduced in England and it was seen as a way of creating an aspect of flexibility into rules. The second definition of flexibility illustrates that the law becomes flexible. Law can be flexible but it does not mean that how the same is put into practice is flexible. Flexibility is a significant attribute of the common law. Common law has been seen to be at risk of standing still if judges were to follow the same old rules of application and practice. However, the flexibility that has been given to the judges prevents the risk from happening. The judges have prevented the common law from becoming irrelevant by being flexible in their offering of justice. With the latter statement, the judges have been found to be both flexible and consistent in the jurisdiction by following principles.
As seen earlier, people believe that justice can be served in the courts. For the latter to happen, ‘legal rules and their application have to be flexible’, thus allowing for just decisions to be made in all cases. The judges are tasked with executing rules that have been formulated by the legislative arm of the government. The judges formulate principles and the work of the court is to adjudicate in accordance with this principle. These principles can sometimes lead to decisions that are not acceptable socially, but it is the work of the Parliament to solve such an issue.
Courts can be flexible and consistent if judges do that which they are tasked with and follow principles. The judges can also keep the Common law alive by not going overboard. In the United States, courts have been able to remain consistent and flexible due to the adoption of the Legislation course which prevents judicial wanderings.
Judges make the common law and it constitutes them making decisions concerning civil and criminal issues, making rulings, and creating precedents. Flexibility allows judges to make laws that respond to life situations that are real, rather than giving a judgment based on contemporary laws. These laws can however be biased as they are formulated by individuals not representing any people, in that they are not elected but appointed into office. Courts applying common law can be consistent as the common law itself is a part of the said consistency. The people who take part in trials and hearings make decisions based on precedent and not on personal preferences. These precedents are formulated by judges from higher courts who have had experience with the judiciary. The above is achieved as a result of concentrating on principle, which in turn keeps the common law alive.
Sometimes it becomes hard for the judiciary to practice common law with flexibility and consistency and still remain true to the policy decisions made by Parliament. However, it becomes easy for the courts if they utilize legal principles and by them trying to put things back on the right track. It is the work of the judiciary to maintain flexibility in common law and allow for Parliament to correct the mistakes that may occur.
Conclusion
It is possible for courts to portray acts of flexibility and consistency by practicing common law through the guidance of principle. If judges stick to their roles and formulate the necessary laws that would see the continuity of common law, then there can be a fair judgment. Common law can also be kept alive if judges make laws that serve fair judgment in current-day real-life situations, instead of depending on past laws and decisions. Parliament should also stand by in case of any mistakes that will need to be corrected. The key to flexibility and consistency is that each arm of the Government sticks to its jurisdiction.
Bibliography
Brooke, David, Q & A Jurisprudence (Routledge 2015) 34.
Gearey, Aadam, Morrison, Wayne and Jago, Robert, The Politics of the Common Law: Perspectives, Rights, Processes, Institutions, (Routledge 2013). 103.
McGuire, Kim,’Legislation, common law and the judiciary: policy, ‘principles’ and reform’ (2016)
McLean, Sheila, Contemporary Issues in Law, Medicine and Ethics (Ashgate 1996) 18.
Stephenson, Graham, Sourcebook on Tort Law. 2nd Edition. (Routledge Cavendish) 33.
Wolff, Lutz-Christian,' Law and flexibility-rule of law limits of a rhetorical silver bullet' (2011)
[1] Stephenson, Graham, Sourcebook on Tort Law. 2nd Edition. (Routledge Cavendish) 33.
[2] Wolff, Lutz-Christian,' Law and flexibility-rule of law limits of a rhetorical silver bullet' (2011)
[3] Brooke, David, Q & A Jurisprudence (Routledge 2015) 34.
[4] Wolff, Lutz-Christian,' Law and flexibility-rule of law limits of a rhetorical silver bullet' (2011)
[5] McGuire, Kim,’Legislation, common law and the judiciary: policy, ‘principles’ and reform’ (2016)
[6] McLean, Sheila, Contemporary Issues in Law, Medicine and Ethics (Ashgate 1996) 18.
[7] Stephenson, Graham, Sourcebook on Tort Law. 2nd Edition. (Routledge Cavendish) 33.
[8] McGuire, Kim,’Legislation, common law and the judiciary: policy, ‘principles’ and reform’ (2016)
[9] Gearey, Aadam, Morrison, Wayne and Jago, Robert, The Politics of the Common Law: Perspectives, Rights, Processes, Institutions, (Routledge 2013). 103.
