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Jak nas widzą – Polski system prawny widziany okiem Australijczyka – Part I

Opublikowany dnia 23 Paź. 2016

Polski System Prawny okiem Australijczyka

FreeImages.com/Elaine Tan”  Polski system prawny widziany okiem Australijczyka 

Nicholas Gowland- australian law student

As an Australian law student, I deeply envy the ability of my Polish boss to pull out her pocket version of the Polish Civil Code to clarify a point of law or procedural rule. In my common-law legal system, finding the right law for a given situation can be anything but simple. The system of binding legal rules in the common law system is composed of countless judicial decisions, interpretations of those decisions, and interpretations of those interpretations, which together constitute a framework of binding rules, rights and obligations. Of course, in modern times a common law lawyer is more likely to look to the ever-increasing body of statutes legislated by parliament, but these written laws are themselves interpreted, altered and applied via legally-binding judicial decisions. Such a complex system produces rules which tend to be specific rather than general, which means that common-law lawyers are often more interested in distinguishing their case from previous decisions, than proving that their case falls within a general category.

Of course, the convoluted and hierarchical common law system is not without its advantages over the Polish civil system. For example, the ability of judges to offer ad-hoc and binding interpretations of statutes allows the common law to quickly adapt to changing circumstances without the need for parliament to create new laws. In addition, the judiciary is sometimes in a better position to create rules in the interest of justice than a parliament whose political will is lacking; in my Australian context, the Mabo (no 2) decision, which granted land rights to Australia’s indigenous citizens even though our parliament had not passed any laws to that effect, is one such example judge-made law serving the best interests of justice.

On the other hand, the lack of a centralised code means that in the Australian system, it is often a very difficult and time-consuming process to find out what the law actually is. Unlike the Polish civil system, Australian law is often inaccessible and unintelligible to non-lawyers. For example, my university law degree devotes two whole courses to the subject of legal research, to enable us to find the current judicial precedent and ensure that it has not been overruled by a newer case. In addition, many of my fellow students are employed by barristers and law firms as part time ‚paralegals’, who assist lawyers with, among other tasks,  legal research to help ensure that their bosses are using the correct law in any given case.

to be continued…