We are not, by any means yet, in a state of grace where we can legitimately say that our Justice is perfect, or even more foolish - the best in the world – for that degrades the evolution of our system and the work of judges who do their best, in the main, to dispense justice within the confines of a flawed menu of laws.
That stated, there is a shocking story in the Guardian today about a flawed legal system and the remarkable courage of a young woman who has renounced her UN immunity by resigning from her job with the United Nations to protest and test the Sudanese judiciary and Islam itself as it is interpreted in that country.
Sudanese journalist quits UN job to go on trial for wearing trousers
Guardian: A female Sudanese journalist facing 40 lashes for wearing trousers in public told a packed Khartoum courtroom yesterday that she was resigning from a UN job that grants her immunity so that she could challenge the law on women’s dress. Lubna Hussein was among 13 women arrested on 3 July in a raid by members of the public order police force on a popular Khartoum cafe. The women were all wearing trousers, considered indecent under the strict interpretation of Islamic law adopted by Sudan ‘s Islamic regime. All but three of the women were flogged at a police station two days later.
I have read with some irritation suggestions from Lord Phillips, the Archbishop of Canterbury and others that we should embrace Sharia law concepts within our nation, and The Times only recently had a Sharia gorge fest reporting on the views of a cleric who wants to see Sharia courts given greater prominence.
We live in an increasingly secular country. I accept, for reasons of history that the Church of England enjoys a degree of primacy, but rather than suggest that we embrace all religious systems within our law, I would prefer to see all religious systems and overt influences removed from law and judicial hearings. We have a common law system which, while not perfect, is evolving. That is one of the benefits of a common law system over more structured written constitutions or civil systems based on codes. It may well lead to imperfection and inconsistency but many of these can be tempered, evened out or put right through our appellate system.
This is not a crass political issue – it is about justice and the rule of law in our country. For my part I do not see how we can operate several different types of law within our nation and I certainly do not feel attracted by the justice of Islam when it continues, even in this country, to be manifestly oppressive to women – most alarmingly, in this country, in terms of the rights of islamic women in relation to divorce and family law issues. I have no difficulty at all with those who wish voluntarily and with informed consent to have their disputes settled by Sharia courts in this country, but I would not wish to see those ‘courts’ have any force of law at all in terms of ousting the jurusdiction of our own courts and system of law – or mediation by those courts barring the right to appeal to the courts of England & Wales.
The Common Law system lives on (possibly in local variants) in countries that Britain had colonized. Though you stop well short of claiming that it is the best, you do seem to place it superior to other “codified” laws (assuming that degree of ‘structuredness’ / ‘codification’ is the dimension along which you are comparing the two types of systems. Btw I’m a layperson with no training in law).
But I would be surprised if you were to claim that Common Law is somehow “better” than the US laws which also seem to be among the “more structured written or civil systems based on codes” ?
Or, if evolution is Common Law’s strength (or perceived strength?), how does its local evolution (within specific jurisdictions) relate to its U.K. evolutions ? Or, is the “benefit” only one-way ? Is it always a “benefit” ?? Especially in matters where speech is involved, I learn that libel laws in UK have a chilling effect, and U.S laws are far less repressive. I would say that being under a Common Law system is a disadvantage for bloggers who come under SLAPP type of actions. I also learn that certain matters such as what constitutes “publication” is not the same across different Common Law based systems. So, is the evolution claim really such a strength ??
(However, I should add that I may be speaking only from my specific context as a Blogger resisting Anton Piller Search in a non-UK common law based system!)
Hope you will shed more light !