Common law and Legislation “Vs” A bill of rights
The common law method of adjudication, in the context of the
doctrine of judicial precedent has been fundamental to the protection of rights
and the prevention of arbitrary determinations, a doctrine built up by
centuries of lawmakers and legal minds, based on just outcomes with a social
Common law rights here in Australia have somewhat become the sole
domain of the legal profession, with very little if any chance the average
Australian trying to defend their innocence in a court above small claims
jurisdiction, there are very few, who would have access to or the learned
information on the precedent of law to put up a capable defense.
Many commentators who try and
determine what exactly our rights may be, tend to apply written information
like that of our Constitution, which offers the non legal mind very little help
if any in our courts, with the attention to the very definition of the written
word, a huge part of any constitutional argument.
A good example is the word
“election”, legislation regarding elections allows for an election to be
disputed, the courts in such cases, will ignore constitutional arguments and
base their decisions on the legislation (electoral law), yet the word election
in this case does not cover a general election, there fore leaving any
challenge to an entire election process invalid, regardless of the conduct.
One would think that the best way
around such issues, would be to argue based on our common law rights, but even
the judges have trouble confronting such a separation of powers it would seem,
so do we need a bill of rights to spell it out for us all?
What Is Common Law?
The word common law is used in many different contexts. The word
common law is used in the present context to describe the body of legal
principles and concepts, which were evolved over many centuries by judges in
the original English courts of law.
When Australia became a colony of
England, these precedents of common law ideals, became part of the Australian
legal system, and remain that way today.
Common law was influential in the
creation of both the area of and restrictions on freedom in England and those
parts of the world, which have the common law tradition as their legal
A study of the history, development and modern creation of common
law is crucial to any analysis of the democratic ideals and social engineering
that has helped to shape and mold our nation states.
The common law is the product of
long evolved social values, which are judicially articulated and interpreted.
It is in the interpretation that the community become disenfranchised from the
protections of common law, making the Ideal of a bill of rights a positive move
for the people and not so ideal for those involved with the judicial process.
The crucial importance of the common
law has tended to be watered down in recent times, by legislative law searching
for quick solutions to social problems, usually made between election cycles,
by government representatives hoping to sell policy ideals, with the
expectation that their sometimes hurried legislation has the answers to a
particular social issue.
This tendency has also been the
result of the pursuit of particular goals by special interest groups in
disregard of long-term damage to the foundations of liberty and democracy. Even
persons who recognise the importance of these rights in their general
application sometimes urge departures from natural just ideals in relation to
matters of particular concern to them, rather than looking at what may be best
for Justice itself.
One of the greatest virtues of the
common law system when it can be applied to justice for one and all is to be
found in its capacity to balance the individual interests in liberty with the
common concerns and interests of the community.
The down fall we see in the common
law system in the modern era, is that of “the best legal mind wins the battle”
with judges hands tied to some degree in support of the system they themselves
are entwined, leaving a self represented litigant with out surety of justice.
The Government and the legal
associations to some degree believe that the solutions to these problems can be
sought by deliberate and calculated reform of the law through written
The issue for me immediately as a
commentator and as one who has tried and failed in the courts to fight for
justice, is that under common law, knowledge of case law becomes supreme, under
legislative law, self interest in the upholding of the ideals of such written
law by the writers, tends to ensure there is very little room for disagreement
with the legislation itself, so a fault in the wording or its ideals, becomes
law and in many cases denies justice.
Compare these facts to the ideals of
a bill of rights, a bill of rights empowers the people them selves, it can be
taught and understood, the biggest issue it raises is the effect it would have
on those who work with in our judicial system, and those who now control
legislation, and the many corporations that have an interest in both.
The common law method, as compared
to reformist legislative change, results in gradual change through the
determination of individual disputes in which parties present contending
arguments regarding just conduct.
In deciding these disputes the courts draw
upon precedents embodying the public morality, which have been developed over
Legislation does have the ability to
compliment common law, but we find immediate conflict, with many magistrates
and judges finding it hard to distinguish which law to follow, that being the
case, what chance does a self represented litigant have, and dare we allow
justice to become the sole domain of only those with a sturdy hip pocket?
The question must be asked; if
common law brings justice closer than legislation, what makes the courts
superior to politicians, bureaucrats and academics as custodians of individual
freedom and public interest?
Several reasons may be given.
One is the impartiality and
competence that is associated with courts functioning in the common law
tradition, as we frequently still hear of innocent parties finding justice,
more so than we do as the result of legislative law.
Other factors make me believe that legislation itself in the most
fails to protect, is that common law itself is a product of reasoned
disputation where individual rights and duties are claimed and evaluated. No
comparable process exists in the political system in which ideological
considerations often prevail and aggressive pressure groups and political self-interest,
exercise influence without regard to reason, justice or community values.
Common law need never be abolished, and neither should legislation
that compliments justice and community values, the missing link is the
empowerment of those in pursuit of their own self determination with a firm
understanding of what they are allowed to or not to do, legislation becomes
law, before the people know it even exists, and legal precedents occur just as
fast, leaving the people them selves with no idea of exactly what the rules and
laws, or should I say their rights and liberties actually are.
The prosecution of any citizen by way of legislative law, they had
no idea existed, is an attack on justice at its grass roots level, do we have
freedom of speech, or is even that freedom reliant on what the speech contains,
for these are the questions very few of us can answer, so a bill of rights is
needed so we can all have a fair understanding.
A bill of rights would help guide our legislators, and reduce the
conflicts of poorly written legislation on our judiciary, it would help future
generation understand the laws of community living, and to know when their
rights are being abused.
Modern common law and the rafts of written legislation are leaving
the people behind, and not only placing too much power in the hands of the
legal profession and our political representatives, but at the same time
costing we the people in more ways than just our hip pocket.
Legislation in a modern technological age is necessary and useful,
but never to be conceived as perfect. The common law method, like all human
creations, is also far from absolute. Common law can usefully be supplemented
by legislative action, but modernization is not the same as social engineering,
a bill of rights has its place between the two in our modern society, it allows
the people understanding, gives the policy makers firm guidelines, and backs up
the judicial process with a firm understanding of our social status and
community consciousness and values.
Over the past few decades, under the guise of modernism of the
system, social activists have
been implementing their own policies as law, with very little respect if any
for the ideals of the community they bind. Hence if we are to be rewarded with
a bill of rights, best it is retrospective, to ensure its core values are
instantly recognizable, a huge task indeed, but what options do we have?
If we continue on the path we now travel, common law will continue
to be smothered out of existence and legislation will become the primary source
of social regulation.
Legislators and bureaucrats will continue to claim the moral high
ground, consider their superior wisdom by indulging in structuring the order of
our society in disregard of the communities preferred value structure.
this kind of legislative activism that leads to progressive erosion of human
rights under the colour of safeguarding public interests.
If common law continues to be diluted by legislation, there fore
no longer working as it once did, can it offer protection for individuals,
against the over reaching and ever-expanding power of government?
Can it protect the freedoms and liberties expected by the
community it offers to serve? And if the effect of legislative law on our
inherited common law system, has watered down the ideals we as a country have
come to believe we have as natural rights, dare we not seek change?
I say a Bill of rights is not only a necessity but long over due,
as much as I have tried to collate my own example for which I believe suits the
Australian way of life, any move towards such written rights, “Must” be
accompanied with open and honest debate in the public arena.
Common law will adapt easier to a bill of rights than our policy
writers, but as the saying goes “such is life” the future is about empowering
the people to live with out having a minority dictate their social status.
still unsure when and how policy makers came to believe they were employed to
dictate every aspect of our lives, but I can definitely see where that decision
is taking us.
It is I who decide whom I love, with whom I associate with, what I
wear, where I reside, and my mode of transport, as long as such decisions do
not interfere with others. I want to know what my rights are, so I can protect
them for my children and theirs.
A bill of rights protects our self determination from those who
think they know better, it will ensure that society in general understand not
just their rights and liberties but are able to protect them, it should become
a part of our educations system, and be embraced by our policy makers, if
indeed they are chosen to represent we the people.
In the most we believe we have rights and liberties right now, but
in my years of study, I have yet to find them, we may have common law rights,
we may have constitutional entitlements, and legislation may, I repeat may
include some protections, all we need to do is remove the word MAY!
Mark M Aldridge
My Idea of an Australian bill of rights is on my
“Bill of rights, debate please”
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