Kara Sears
Common law and statutory law are two distinct legal systems that operate differently. Common law is based on precedents and judicial decisions, while statutory law is written and passed by a country's legislative bodies and government. Common law is more flexible than statutory law, as it evolves through a series of gradual steps, adapting to new trends in political, legal, and social philosophy. Statutory laws are more rigid and require legislative action to adapt to societal changes. While common law is generated through court decisions, statutory law begins as a bill proposed in the legislature, which is then voted on and can go through several hearings, edits, and votes before being approved.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Statutory law is a written law enacted by a legislative body. | |
| Basis | Common law is based on precedents and case law. |
| Statutory law has statutes as its basis. | |
| Evolution | Common law evolves organically over time as societal norms and judicial interpretations shift. |
| Statutory law is more rigid and requires formal processes to amend. | |
| Adaptability | Common law is adaptable to changing circumstances. |
| Statutory law provides stability and consistency in application. | |
| Sources | Common law is derived from judicial decisions and precedents. |
| Statutory law originates from legislators taking proactive steps to draft, propose, and enact new laws. | |
| Judicial Precedent | Common law relies on judicial precedent. |
| Statutory law relies less on judicial precedent and more on the precise language crafted by lawmakers. | |
| Application | Common law is flexible and fills in gaps through evolving judicial precedent. |
| Statutory law creates concrete legal ground rules. | |
| Examples | Common law is practiced in Australia, Canada, India, United Kingdom, and United States. It is also practiced in Ghana and Hong Kong. |
| Examples of statutory laws include regulatory laws, administrative laws, and civil law. |
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What You'll Learn
Common law is more flexible than statutory law
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided". Common law is developed through judicial decisions rather than statutes, and it evolves over time as courts interpret and apply legal principles to resolve disputes. This makes it inherently flexible and adaptable to changing circumstances.
Common law is based on case-by-case rulings by judges, which are made in reference to previous similar cases and societal norms. This allows common law to evolve organically over time as societal norms and judicial interpretations shift. In contrast, statutory laws are written laws enacted by a legislative body, resulting in more rigid frameworks that require formal processes to amend. While common law can be revised by courts without legislative intervention, statutory laws require legislative action to adapt to societal changes.
The flexibility of common law is further demonstrated in its ability to leave the legal code open for interpretation. This becomes increasingly important as technology advances and plays a greater role in our lives. Common law can be interpreted and applied to new and emerging situations, making it more adaptable than statutory law.
Additionally, common law evolves gradually over time, allowing for substantial changes without sharp breaks. This incremental approach reduces disruptive effects and ensures consistency and predictability in the legal system. In contrast, the legislative process for statutory law is often lengthy and difficult to initiate.
Overall, common law is more flexible than statutory law due to its ability to evolve organically, adapt to changing circumstances, leave room for interpretation, and evolve gradually without sharp breaks. These characteristics of common law ensure a consistent and predictable legal system that can better address emerging situations.
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Statutory law is written law
Statutory law is established by an act of the legislature that is signed by the executive. In the US, for example, federal statutory law is passed by Congress and signed by the President. State law is passed by the state legislature and signed by the state governor. In rare circumstances, the executive (President or governor) may refuse to sign the bill, or veto it. However, the legislature can override this with a two-thirds majority of votes.
Statutory laws are also known as statutes and have their basis in the written word. They are passed by various government agencies of a country. In the US, for example, there are laws passed by federal and state governments, and ordinances passed by towns and cities. These have the power of law.
Common law, on the other hand, is developed through judicial decisions and is based on precedent. It is also known as case law or judge-made law. While common law may incorporate certain statutes, it is largely based on previous rulings by judges.
Most nations in the world follow a combination of common law and statutory law.
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Common law is based on precedent
Common law is a body of unwritten laws based on legal precedents established by the courts. It is defined as law that has been developed on the basis of preceding rulings by judges. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is generally understood to mean law that is independent of statutes.
Common law is based on the principle of stare decisis ("to stand by things decided"), where past judicial decisions serve as case law to guide future rulings, thus promoting consistency and predictability. Precedent refers to a court decision that is considered an authority for deciding subsequent cases involving identical or similar facts, or similar legal issues. The example set by higher courts is binding on cases tried in lower courts. However, lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case. Lower courts can also choose to overturn the precedent, but this rarely occurs.
In some instances, precedent depends on the case-by-case traditions of individual jurisdictions, which can result in elements of common law differing between districts. For example, common law marriage, also known as a non-ceremonial marriage, is a legal framework that may allow couples to be considered married without having formally registered their union. While common law is not common in the US, several states have statutes or allow for common-law marriage if certain requirements are met. However, some states, such as Alabama, have recently abolished these statutes.
Statutory laws, on the other hand, are written laws passed by the legislature and government of a country and accepted by society. They are already written and simply need to be applied to specific cases. They differ from common law, which is more malleable and can be revised or reinterpreted by courts without legislative intervention to adapt to new trends in political, legal, and social philosophy.
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Statutory law requires legislative action to change
Common law, also known as case law, is a body of law developed through judicial decisions rather than statutes. It is deeply rooted in stare decisis, which means that courts adhere to precedents established by previous rulings. When deciding a case, judges refer to previous similar cases and use the judgments rendered then as a basis for deciding the current case. Common law is generally understood to mean law that is independent of statutes.
Statutory law, on the other hand, consists of written laws passed by the legislature and government of a country. These laws are accepted by society and have statutes as their basis. The process of creating a statutory law starts with a bill proposed in the legislature and voted upon. The bill can go through several hearings, edits, and votes before being approved. Once approved by both houses of the legislature, the bill passes to the executive branch, and if signed, becomes a statute. If the executive declines to sign the bill, it can be vetoed and returned to the legislature. However, in many cases, if the legislature passes the bill a second time by a particular margin, it becomes a statute.
The distinction between common law and statutory law is essential, as most nations in the world follow a combination of both. While common law is generated through court decisions and judicial precedent, statutory law requires legislative action to change or enact. The legislative history of a statute includes various documents created during its progress through the legislature, such as revisions, debates, hearings, and reports. These documents are valuable when determining the legislature's intent in passing a particular law.
Furthermore, statutory laws are not only enacted by the federal government but can also be passed by various government agencies, including federal and state governments, and even ordinances passed by towns and cities. These laws are issued to meet the needs of citizens, resolve outstanding issues, and formalize existing laws. Thus, statutory law requires legislative action to change, as the legislative body has the authority to enact, modify, or veto laws.
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Common law can be reinterpreted and revised without legislative intervention
Common law is deeply rooted in stare decisis, which means "to stand by things decided". It is a system of law that is primarily developed through judicial decisions and rulings made in previous similar cases, rather than statutes. In other words, it is law that is independent of statutes. Common law is more malleable than statutory law, and there are a few reasons why common law can be reinterpreted and revised without legislative intervention:
Firstly, common law courts are not absolutely bound by precedent. When an extraordinarily good reason is shown, they can reinterpret and revise the law without legislative intervention to adapt to new trends in political, legal, and social philosophy. This flexibility allows the law to be adapted to situations that were not contemplated at the time by the legislature. For example, the common-law offence of "outraging public decency" has been used in the UK to prosecute a new intrusive activity called "upskirting".
Secondly, common law evolves through a series of gradual steps, gradually working out all the details. This means that over a decade or more, the law can change substantially without a sharp break, thereby reducing disruptive effects. This gradual evolution of common law allows for a consistent interpretation of the law over time.
Thirdly, in a ""case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent. This means that common law can be reinterpreted and revised by judges without the need for legislative intervention.
Lastly, lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case. This allows for a certain degree of flexibility and interpretation in the application of common law. However, it is important to note that while lower courts have this discretion, they rarely choose to overturn the precedent.
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Frequently asked questions
Common law is law that has been developed based on previous rulings by judges. It is flexible and adapts to changing circumstances, making it malleable.
Statutory law is written law passed by the legislature and government of a country. It is more rigid than common law and requires legislative action to change.
While common law is independent of statutes, statutory law can supersede common law. Legislatures may take away common law rights and introduce statutory law, as seen in the case of Ghana (then Gold Coast) when it came under British rule.
Common law changes through a series of gradual steps, gradually working out the details. Over a decade or more, the law can change substantially without a sharp break, reducing disruptive effects.
Common law is determined through research analysis, location of previous relevant cases, and extraction of statements and sentences passed. Decisions of higher courts rule over lower courts and earlier cases.
