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The Forum > Article Comments > Has the time come for the common law to be scrapped? > Comments

Has the time come for the common law to be scrapped? : Comments

By Katy Barnett, published 9/1/2009

The adversarial legal system has definite drawbacks. But can a more inquisitorial mode fix those drawbacks?

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Pelican, I couldn't agree more, and I have written on this issue elsewhere on my blog. I could not have afforded to hire myself at the rates my firm charged out for my services (if you understand what I mean!) And I was a middle income earner at that time.

Part of the problem lies in the way in which legal fees are calculated according to time spent, using billable units. I might cost $240 an hour (fair enough, you might say). So I'd charge $24 for every six minute unit I spent working on someone's case. A 5 minute phone call - $24. Drafting an e-mail - $48. And so forth. It all adds up to a massive amount of money when you calculate it that way. I have long been an advocate for the abolition of billable hours, as I believe they inflate costs for clients, and make lawyers more inefficient (the longer you take, the more you can charge so there's no incentive to be efficient).

The problem is that it's hardly worth seeing a lawyer for a claim of $2000 if the lawyer's going to carve out $1500 in fees. It just isn't cost effective. The only thing ordinary people can do is to see a volunteer at a community legal centre, or to seek pro bono assistance. I sometimes wonder if a "Lawcare" scheme needs to be set up (like Medicare). The fact of the matter is that private law (contract, tort and the like) is essential to a just society and if we can't access the law which enables us to enforce those rights, then they are useless.

I don't know what the answer is. But at least I recognise the problem, I suppose.
Posted by Legal Eagle, Sunday, 11 January 2009 9:46:02 PM
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Most lawyers have no idea what the common law really is. The Common Law of Britain, was the law set out in the New Testament and the system developed in that small but enormously influential country grew out of its essentially Christian Culture.

I have spent the last five years in Sydney researching the connection between Christianity, the New Testament and the Australian Constitution. I have spent fifteen years observing a parade of hypocrites, spivs and conmen extracting enormous amounts of money from the pockets of their victims, and instead of calling them Legal eagles, they should be called Legal Vultures. The first thing they usually do is bankrupt the victim without trial, and then proceed to pick over the carcase.

What has really happened is that the common law has been abolished, and a system run by lawyers, for lawyers, set in place. Under the common law, truth was always determined by a jury. Lawyers hate juries. A jury was the Church, because all the members were Christians, and blasphemy was a sin. Lawyers were the one profession that were anti Christ. The Court House and Church were side by side, in places like Sydney. When S 116 Constitution was introduced, Protestant Christianity, which gave the English the common law, lost its coercive power. The Roman Catholics wanted the system they had in Europe, and the Irish pushed for it. The maxim, The Pope never sleeps, was a common law given. The Judicial power of the Commonwealth came from the Holy Trinity, Father/Justice Son/ Jury and Holy Spirit to find the truth.

Jury infallibility, adopted by the English in the Magna Carta has been replaced with Parliamentary infallibility, and the lawyers in and out of Parliament are the priests of this heresy. We do not have a common law system, because we abolished it in New South Wales in 1970, in the Federal Court in 1976, and High Court in 1979. Every State has followed suit, and as a consequence, Parliament in Canberra is impotent. No referendum has ever been held to abolish the common law but its gone
Posted by Peter the Believer, Monday, 12 January 2009 5:25:38 AM
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@ Legal Eagle

The French president recently announced that the "juge d'instruction" would be abandoned and replaced by a "judge de l'instruction".

Nicolas pointed out that the role of the "juge d'instrution" is to gather evidence for both the guilt and the innocence of the accused before deciding if he or she should be placed in detention and subsequently brought to trial. He observes that this is impossible.

The new "juge de l'instruction" would not be in charge of the preliminary investigation. This role would be assumed by the public prosecutor appointed by the Ministry of Justice. The new "juge de l'instruction" would then exercise the unique role attributed to him as judge on the basis of the elements presented by the public prosecutor and the counter arguments provided by the defendants lawyers.

The announcement of this presidential project has sparked a considerable uproar mainly (but not exclusively) from French (leftist) opposition. The principal point of contention is that the public prosecutor is neither independent nor impartial. He is part of the political "executive" and therefore takes orders from Nicolas and his government. (The courts are a convenient tool for eliminating one's political foes).

In addition, the public prosecutor is unlikely to question anything the police might come up with. He would most likely ignore any evidence tending to prove innocence.

The projected reform should not be interpreted as a simple move from an "inquisitorial" form of justice to an “adversarial” form. It is a little more complex than that in view of the current lack of independence of the public prosecutor. Apart from the outright rejection of the reform, suggestions have also been voiced that the public prosecutor should be spun off from the “executive” and given complete independence.

However, to put all this into perspective, it should be noted that the present “juge d’instruction” only deals with about 4% of all cases brought before the French courts of justice and only about one third of all criminal cases within that total
Posted by Banjo Paterson, Monday, 12 January 2009 6:32:57 AM
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Magna Carta says: "No free man shall be taken indeed imprisoned, either dispossessed, or outlawed, or exiled, or in any manner destroyed, nor pass over him, nor send over him, except by means of the legal judgment of his own equals indeed the law of the land..."
The purpose of the Magna Carta and common law was to prevent persecution. Specifically, persecution by the monarch, and by extension, by the powerful and rich.
In a thousand years, this need has really not changed. Trial by jury is still our best defense against persecution.
Jury trial has always (until 1970, in this country) been a right, that could be waived by mutual agreement by both parties.
We already have specialised courts, for specific purposes. Family law, for instance. If a jury trial is inappropriate in certain circumstances, and IF both parties agree, these courts could be utilised.
Legal Eagle says:"Some lawyers are just not very good at seeing the woods for the trees."
Is not the purpose of statutes (indeed, all laws) ultimately to prevent harm? Either physical, mental, or economic?
How can any statute or law of any kind be broken without incurring harm of some description?
We have come to a cross roads. The next decade will see greater changes -both ecomonic and social- than perhaps ever before.
We must be sure those changes do not further erode individual rights and freedoms.
Posted by Grim, Monday, 12 January 2009 10:51:50 AM
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Legal Eagle,
Let me begin with the caveats.

I am not a lawyer, policeman (or pretend one), bureaucrat, social worker nor in real state. My actual training is 5 legal subjects in a BBus 25 yrs ago. I’ve spent 20 years in business providing ancilinary services to lawyers/accountants. I’ve spent years (volunteer) at the dirty end of crisis intervention neither do I fit the leftie mould.

To me the legal system in its present form is well past its use by date. Horse and buggy systems for the rocket age. Additionally it was designed for a very different social order and legal complexity.
I argue that today the social emphasis is or should be on courts of justice rather than of black letter law. The latter alone spawn a myriad of unjust currently legitimate practices, tactics, bullying and favouring those with the most money.

Justice must be more accessible. One can even argue that this limited accessibility is at least contributing factor to the social divide that threatens to engulf our society. This can’t be achieved with the one size suit no one procedural approach

I question the logic of a sharp lawyer who has made a career from winning by any means being rewarded with a position to the bench.(different skill set).
Then there is the issue of competence in complicated accounting or science based cases. To these ends I would suggest that Judges be separately/specially trained not necessarily from the lawyer community. Nor should the legal community be involved in their selection (lobbing etc).

I would have a committee of these specially trained judges after discovery assess on a case by case basis and allocate the procedure to be applied. (See original post for possible alternatives. In this way reduce the impact of tactics, money and emotionally motivated juries from trials. Like wise Lawyers shouldn’t know who is on the bench in a case until they walk in this would reduce running a case to the judge (tactics). Facts, truth and justice should be the objective not a win.

There is more…but I guess you get the flavour
Posted by examinator, Monday, 12 January 2009 11:10:40 AM
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There must be a way to have a modern, simple, affordable, reliable fast track system of justice that puts the search for truth as the top priority.

Having just one body of statute law for all Australians would be a giant step forward. The madness of thousands of conflicting laws for 22 million Australians has to be addressed if we are to streamline the law and drastically reduce the extreme costs of litigation.

Trialling a good practice inquisitorial system is certainly worthwhile. But why stop there? Science needs to play a more prominent role in criminal law. Leading edge medical research engaging brain scans to detect lies from truthful statements should also be trialled. Why oh why do we perservere with such a broken system of justice that primarily benefits only a small elite?
Posted by Quick response, Monday, 12 January 2009 3:26:46 PM
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