The legal context for implementation of international law
Contents- The CRC Framework
- Wider Framework for Children’s Rights
- Key elements of a Children's Rights Based Approach to legislative reform
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The legal context for implementation of international law
- Dualism Vs Monism
- Common law tradition
- Civil law tradition
- Islamic law and legal systems
- Mixed or Pluralist Legal Systems
- Legislative Reform in Unitary States Vs Federal States
- Legislative Reform in Devolved States
- General reflection on local and regional governments in the context of children’s right legislative reform
- Guidance of the CRC Committee on decentralisation, federalisation and delegation
Common law tradition
Background
The common law tradition is derived from the English legal tradition. Historically, common law was developed by custom (prior practices of the courts) before there were written laws. This practice has continued to be applied by common law courts, even after laws existed in written form.
Implications
Court decisions (case law) are binding. They are an important source of law and expression of legal rules.
The courts’ interpretation of the Constitution, legislation and codes is a source of law. Judges create and refine law by interpreting community standards and traditions. The courts' decisions establish precedents for the interpretation of the law by judges in the same or lower courts within the same jurisdiction.
Constitutions and statutes are written and enacted by parliament, and interpreted by judges. Court cases fill the gaps in legislative texts. In many common law countries, judges are seen as balancing the power of the other branches of government.
Key considerations to take into account when engaging in legislative reform within common law countries
A legislative act of the national parliament is required to incorporate the CRC into national law. Unless the relevant law is enacted, the CRC will not be legally binding in the State Party.
- The CRC is therefore not directly applicable in the legal systems of many of the States Parties to the CRC.
As a result, the development of legislation giving effect to the CRC in whole or in part may require extensive debate and public awareness.
- While this is necessary for the implementation of such legislation, it also prevents problems of lack of public awareness that may exist in States with automatic incorporation.
In common law countries, changes in law do not always require changes in legislation. This is because common law incorporates two sources of law and is created as much through judicial decision and precedent as through legislation.
- Therefore, it is important to involve the judges in the reform process, through awareness raising, education and active engagement.
Source: Kilkelly 2019