While the basic premise of this argument is that common law is bad, there are other factors at play that make it a poor choice for the rule of private law. The first of these factors is the difficulty of pursuing favorable rulings when common law advogato is involved. This is especially true for marginalized parties because common law interpretations are susceptible to popular opinion or changes in civil legislation. Feminists faced these problems when the English common law held that the father was entitled to custody of a child when a couple divorced. It was the common law that trapped women in marriages and had children.
The second factor at play in this argument is the importance of consistency in common law decisions. Courts have a tendency to adopt decisions that are based on the precedents of previous decisions, which influences the jury’s interpretation. The fitfinder result can be an unfair empowerment of some groups and marginalization of others. However, the primary purpose of common law and civil law is to create a uniform body of laws that applies to all cases. This is a good thing, but it comes with its drawbacks.
The first problem arises because of the common law’s power to punish self-termination. In the first place, common law did not sanction self-termination in any way. The punishment only came later with legislation. The second reason is that Dellapenna mentions only one case before the nineteenth century. Although the defendant is not named, she was protected by a general pardon. So, in essence, common law was bad.
Second, common law has a tendency to focus on quickening. There were no scientific pregnancy tests in the 13th century, and men writing about quickening as a legal criterion had to extend consciousness and place a singular individual at the center of the nettby matter. This was a much more humane understanding of pregnancy. Moreover, it put the child’s existence in front of the singular individual. So, while common law may be bad, it can also be good.
Third, common law is bad for small claims. This is because discovery is too expensive and complicated for small claims. Even though a judge may appoint neutral experts to testify, this rarely happens. Instead, attorneys hire experts and may hire people who will favor their position. This leads to high costs for both parties. It is a mistake. It is not uncommon to lose your money when the relationship breaks up, which makes it all the more attractive.
Another reason that common law is bad is that it can lead to unfavorable outcomes in legal cases. In one case, a brickyard that had been operating legally in a neighborhood for decades was closed down, even though it was a nuisance. The same thing happened in another case where a brickyard closed down after it was found to be legal. Despite the fact that this case was an exception, the decision could have had devastating effects on the rule of law in general.
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