The Flexibility Of English Common Law

By David Corker, Corker Binning (November 17, 2016, 1:05 PM EST) -- The constitutional function of the courts and the separation of powers in our unwritten constitution are subjects which, in light of the U.K. High Court's recent judgment regarding Brexit, have attracted an avalanche of comment. In most "western" countries, the bedrock of judicial decision-making is a written code or legislative enactment. Nowhere is this approach more evident than in continental Europe and in the interpretation of European Union treaties by the European Court of Justice. As this judgment of the High Court manifests, in our jurisdiction it is customary or common law that implications and inferences from past cases determine the outcome. Much of our law of fraud, both civil and criminal, is the product of legal evolution. Conspiracy, for example, which is often pleaded when fraud is alleged either as a tort or a crime, was invented by courts during the 19th century to deal with perceived contemporary problems....

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