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Text 10 the decline of common law

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From the late nineteenth century, however, given the changing socio-economic conditions of the times, common law has been steadily eroded by parliamentary legislation. Today statutory law is extremely important; it is supreme where a conflict occurs between it and the common law. Hence reference is frequently made to the doctrine of parliamentary supremacy or sovereignty. Nothing in the long run can compete with parliamentary law. That does not mean to say that judicial precedents have also diminished at the same rate. On the contrary, judicial interpretation of the clauses of a statute remains crucial, particularly when a new Act of Parliament is passed or an existing one amended. The first case - a test case -brought under such an Act will be watched closely by the legal and political professions. The judicial interpretation in that kind of case will, in itself, establish a precedent, but in statutory as opposed to common law. Nonetheless the term 'precedent' is historically associated with the common law. So how do judges make decisions, particularly in common law cases? One way in which they might do so is to use the deductive method. Deduction may be regarded as reasoning from the general to the particular. A rule or a theory is developed in the judicial mind, or held by that mind to exist, and as a result that rule leads logically to a particular conclusion given all the circumstances of the case in hand. Induction is the opposite: reasoning moves from the particular to the general. The circumstances of the case suggest that a particular rule of law be formulated or found. The inductive approach, however, does not necessarily demand a particular conclusion. It is probably rather more accurate to say that English judges generally proceed by analogy, thus avoiding the potential conflicts between deduction and induction.

Analogy is the art of comparison: judges will compare similar problems and similar circumstances. They will see whether two or more apparently like problems might have to be decided differently according to the facts and the circumstances of each case. It is essentially a cautious, pragmatic approach; indeed judges might well be accused of being generally more cautious, or possibly more conservative, than their political masters in Parliament who have been responsible for so much of twentieth-century law. Analogy is reasoning by example: example and comparison have been at the heart of common law over the centuries. In short, analogy is reasoning from the particular to the particular; thus it may be viewed as imperfect or primitive induction.


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Читайте в этой же книге: Работников | Text 1 Why legal history is important | Text 2 Civil law and common law | TEXT 3 the transformation of english legal science | Part II | Part III | TEXT 7 JUDGES PART II | B. Federal Criminal Law | A well-regulated militia being necessary to the freedom of a free state, the right of the people to keep and bear arms shall not be abridged. | D. Juvenile Justice |
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