Common Law Vs Statute Law: Who Wins?

Common law is made by judges and developed through the principle of binding precedent and the decisions of the courts. However, when common law varies with statute law, the statute law will overrule. This is because the supreme power to make laws is vested in elected representatives of parliament. The role of the courts is to interpret the laws made by those parliaments and, where appropriate, create new laws.

Common law vs statute law in the UK

In the UK, when a judge hears and decides individual cases, they apply and interpret both UK statute and common law. However, when common law varies with UK statute, the statute law will overrule. This is because the supreme power to make laws is vested in elected representatives of parliament.

Common law is made by judges and developed through the principle of binding precedent and the decisions of the courts. The courts will approach interpretation with certain common law presumptions in mind, based on an expectation that certain tenants of the legal system will be followed by the legislature.

Parliament can override the decisions made at common law by enacting legislation to cover the area of law previously covered by the common law. However, the courts require a clear indication that the intent is to abrogate a fundamental right before such an interpretation is accepted. A 'fundamental right' will only be taken to be displaced if society values have changed and a right recognised by law where the displacement standard is lower. It is established at common law that fundamental rights cannot be overridden by general or ambiguous words contained in statute.

Common law vs statute law in Australia

In Australia, an Act of parliament will overrule common law if there is a common law principle and an Act which conflict in relation to the same area of law. This is because the supreme power to make laws is vested in elected representatives of parliament. The role of the courts is to interpret the laws made by those parliaments and, where appropriate, create new laws.

In the UK, when common law varies with statute law, the statute law will overrule. Common law is made by judges and developed through the principle of binding precedent and the decisions of the courts.

In Australia, the courts will approach interpretation with certain common law presumptions in mind, based on an expectation that certain tenants of the legal system will be followed by the legislature. The rationale is that the established judicial system and associated rules of common law function in the interests of society. All assumptions are subject to the basic rule that Parliament may override them, however, the courts require a clear indication that the intent is to abrogate a fundamental right before such an interpretation is accepted.

A 'fundamental right' will only be taken to be displaced if society values have changed and a right recognised by law where the displacement standard is lower. It is established at common law that fundamental rights cannot be overridden by general or ambiguous words contained in statute and that it is highly improbable that the legislature would overthrow.

The role of judges in common law

In the UK, when a judge hears and decides individual cases, they apply and interpret both UK statute and common law. However, when common law varies with UK statute, the statute law will overrule. This is because the supreme power to make laws is vested in elected representatives of parliament. The role of the courts is to interpret the laws made by those parliaments and, where appropriate, create new laws (either through the process of interpretation or because no current parliament-made laws exist in the particular area).

Common law is made by judges and developed through the principle of binding precedent and the decisions of the courts. The courts will approach interpretation with certain common law presumptions in mind based on an expectation that certain tenants of the legal system will be followed by the legislature. The rationale is that the established judicial system and associated rules of common law function in the interests of society. All assumptions are subject to the basic rule that Parliament may override them, however, the courts require a clear indication that the intent is to abrogate a 'fundamental right' before such an interpretation is accepted. A 'fundamental right' will only be taken to be displaced if society values have changed and a right recognised by law where the displacement standard is lower.

The role of parliament in common law

Statute law will overrule common law if there is a conflict between the two. This is because the supreme power to make laws is vested in elected representatives of parliament. The role of the courts is to interpret the laws made by parliament and, where appropriate, create new laws. Parliament can override the decisions made at common law by enacting legislation to cover the area of law previously covered by the common law.

However, some common law principles remain and do not impinge on the statutory approach. The courts will approach interpretation with certain common law presumptions in mind based on an expectation that certain tenants of our legal system will be followed by the legislature. The rationale is that the established judicial system and associated rules of common law function in the interests of our society. All assumptions are subject to the basic rule that Parliament may override them, however, the courts require a clear indication that the intent is to abrogate a fundamental right before such an interpretation is accepted.

A 'fundamental right' will only be taken to be displaced if society values have changed and a right recognised by law where the displacement standard is lower. It is established at common law that fundamental rights cannot be overridden by general or ambiguous words contained in statute and that it is in the last degree improbable that the legislature would overthrow.

Common law and fundamental rights

In the UK, when a judge hears and decides individual cases, they apply and interpret both UK statute and common law. However, when common law varies with UK statute, the statute law will overrule. This is because the supreme power to make laws is vested in elected representatives of parliament. The role of the courts is to interpret the laws made by those parliaments and, where appropriate, create new laws (either through the process of interpretation or because no current parliament-made laws exist in the particular area). Parliament can, of course, override the decisions made at common law by enacting legislation to cover the area of law previously covered by the common law.

Common law is made by judges and developed through the principle of binding precedent and the decisions of the courts. The courts will approach interpretation with certain common law presumptions in mind based on an expectation that certain tenants of our legal system will be followed by the legislature. The rationale is that the established judicial system and associated rules of common law function in the interests of our society. All assumptions are subject to the basic rule that Parliament may override them, however, the courts require a clear indication that the intent is to abrogate a fundamental right before such an interpretation is accepted.

A ‘fundamental right’ will only be taken to be displaced if society values have changed and a right recognised by law where the displacement standard is lower. It is established at common law that fundamental rights cannot be overridden by general or ambiguous words contained in statute and that it is highly improbable that the legislature would overthrow.

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