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Mar 10, 2009 09:48 english beginner spanish law common
We have to distinguish in Common Law systems the two main branches, i.e. the British one and the American one. While the American system has a written constitution which establishes separation of powers, the British system has an unwritten constitution and separation of powers (that is: legislative, executive and judiciary) is less clear.

Taking as a reference the British system, we can say that an unwritten constitution is a good thing due to its flexibility and its "matter of fact" approach, but at the same time it has some problems. Surely the most important worry is the uncertainty and insecurity as a consequence of not having a written constitution, which would establish the main principles and institutions of the State.

There is a tension between the principles of flexibility and security. To choose between one or the other as the most important will depend on the ideas of each person. Certainly the ideal type would be to mix both and to try that the system have as much flexibility and security as possible, but anyway we have to put one as the principal. That is the main difference between the British system and the Continental system, while the first places the flexibility and tradition at the top, the last chooses the security and the rational knowledge of a written constitution.

But there are another advantages and disadvantages. In my opinion, the judicial precedent is one of its advantages in addition of the judge-made law, especially because the judges are chosen from the best and more experienced barristers, so theirs decisions are usually very suitable and logical. Moreover, this system avoids the danger of endless changes of the law everytime a new party takes the power, as it happens in Continental systems.

On the disadvantadges side, as some people say the Common Law system, based in judicial precedent and with almost nothing codified, is more messy and unclear than a codified system.

Others sources of the Common Law system as Costum or Books of authority are similar to those that the Continental system has.

To put it in a nutshell: Common Law has advantages and disadvantages, and the same is for the Continental system, so the basic reason for the prevailing of one system or the other is cultural tradition and the idiosyncrasy of each country or region (although sometimes it was brought by force).

I prefer the Common Law system for its flexibility and case approach, but this is a subjective decision and it will depend on the preferences of each individual. The most important thing is that the Rule of Law and the Supremacy of Parliament work. But this is something that can only be achieved by the will of each country and its effort to maintain it.
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