Gavin Howe
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is more flexible than statutory law, as it can be adapted to situations not contemplated by the legislature. Common law is interpreted by judges, who determine new boundaries and distinctions. Statutory law, on the other hand, is strict in its application and is developed by the government of a state or nation. It is organized and codified into law codes and covers areas where common law is not applicable. The question of whether statutory law can interpret common law is complex and depends on the specific legal system and context under consideration.
Can Statutory Law Interpret Common Law?
| Characteristics | Values |
|---|---|
| Common law | Exists first, before any case law |
| Case law | Recognises and elucidates common law |
| Statutory law | Developed by the government of a state or nation |
| Governed by strict application | |
| Not subject to the same interpretation as common law | |
| Common law | More malleable than statutory law |
| Not absolutely bound by precedent | |
| Can reinterpret and revise the law |
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What You'll Learn
Common law vs civil law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is being developed every day without fractionalizing society or costing the state. Common law is derived from its original appearance in medieval England and is practised in the US, UK, Australia, Canada, Hong Kong, India, New Zealand, and several other countries that were former British colonies or protectorates.
Statutory laws are developed by the government of a state or nation and are organized and codified into law codes. They cover all areas regulated by statutory laws exclusively as well as those areas where common law is not applicable. Statutory laws are instructions that can be passed by various government agencies of a country, including federal and state governments, and ordinances passed by towns and cities.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. Civil law is generally more prescriptive than common law, with more detailed laws passed by legislators, and less reliance on the opinions of judges. Civil law is based more on Rome and Napoleonic France, and is practised in Germany and France.
In a common law country like the US, judges can make laws in certain areas, whereas in civil law countries, legislatures pass more detailed laws. Common law is more flexible and adaptable to situations not contemplated by the legislature, while civil law is more standardized and aims to reduce bias in the application of laws.
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Common law's flexibility
Common law is a legal system that is based on precedent and past rulings. It is flexible and adaptable, allowing for interpretation and the filling of gaps in statutory law. This flexibility is a key advantage of common law systems.
Common law is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. This means that judges play an active role in shaping the law by interpreting how it applies to specific cases. Over time, these interpretations create a body of case law that serves as a guide for future legal disputes. This is known as stare decisis, or "let the decision stand" in Latin.
The flexibility of common law allows it to respond to unforeseen cases, situations, and facts that were not anticipated by legislators. It can fill in the gaps in statutory law and provide guidance in situations where there is no applicable statute. This is particularly important in a rapidly changing society, where new technologies and issues are constantly emerging.
For example, in the case of a dispute over a contract, employment agreement, or intellectual property rights, common law principles can be used to resolve the dispute. Judges will interpret the terms of the contract or decide whether a business has met its legal obligations based on past rulings in relevant cases. This flexibility allows the law to be adapted to specific situations and ensures that the law can keep up with societal changes.
However, it is important to note that the flexibility of common law can also lead to criticism. Some argue that judges are unaccountable to the people and can make decisions that are inconsistent with community standards and values. Additionally, the lack of a formal review process for common law decisions can be a cause for concern.
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Statutory law's strict application
Statutory laws are developed by the government of a state or nation and are organized and codified into law codes. They are instructions that cover all areas regulated by statutory laws exclusively, as well as those areas where common law is not applicable. Common law, on the other hand, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law, also known as case law, fills in the interpretive gaps in statutes and has a similarly binding authority as the statute.
Statutory interpretation is the process by which courts interpret and apply legislation. The freedom of interpretation varies by area of law. For example, criminal law and tax law must be interpreted very strictly and never to the disadvantage of citizens. In contrast, liability law requires a more elaborate interpretation because it usually involves two citizens. In some cases, the statute may even be interpreted contra legem in exceptional cases if a patently unreasonable result would otherwise follow.
The interpretation of international treaties is governed by the Vienna Convention on the Law of Treaties, notably Articles 31–33. The rule set out in the Convention is that the text of a treaty is decisive unless it leads to an ambiguous, obscure, or manifestly absurd or unreasonable result. In the United States, an absurdity is defined as a preposterous outcome that "no reasonable person could intend".
In the case of Nothman v. London Borough of Barnet, Lord Denning of the Court of Appeals criticized those who adopt a strict literal and grammatical construction of the words, stating that the "literal method is now completely out-of-date [and] replaced by the ... 'purposive' approach". However, on appeal, Lord Russell in the House of Lords disagreed with Lord Denning's sweeping comments.
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Common law and precedent
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is deeply rooted in stare decisis ("to stand by things decided"), where courts follow precedents established by previous decisions. When a similar case has already been resolved, courts typically align their reasoning with the precedent set in that decision. However, in a ""case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent.
Common law is being developed every day without causing fractionalization of society or expense to the state. It is more malleable than statutory law, as common law courts are not absolutely bound by precedent. They can reinterpret and revise the law without legislative intervention to adapt to new trends in political, legal, and social philosophy. This evolution of common law is in the hands of judges, who have "made law" for hundreds of years.
The value of a common-law system is that the law can be adapted to situations that were not contemplated at the time by the legislature. Common law fills in the interpretive gaps in statutes and has a similarly binding authority. For example, in a case concerning assault with a deadly weapon, the statute might list guns and knives as examples. However, if a person used a baseball bat with a railroad spike driven through it, a judge may rule that it is a deadly weapon, thus establishing a precedent in common law.
Judges create common law when they decide cases. The US Supreme Court and state supreme courts create most of the common law, and federal and state appellate courts also create common law if an issue has not yet been decided by their supreme court. Trial judges must follow the common law set by higher courts.
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Common law in the US
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is deeply rooted in stare decisis, which means "to stand by things decided". Here, courts follow precedents established by previous decisions.
In the US, common law originates from medieval England, and it is still very much in effect today. The US common-law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. American courts originally fashioned common-law rules based on English common law. Over time, the American legal system became mature enough to create its own common-law rules, either from direct precedent or by analogy to comparable areas of decided law.
US common law is developed on an everyday basis without causing fractionalization of society or creating any expense to the state. It fills in the interpretive gaps in statutes and has a similarly binding authority. For example, in the case of assault with a deadly weapon, a statute might list guns and knives as examples. However, if a person used a baseball bat with a railroad spike driven through it, a judge may rule that this modified baseball bat is a deadly weapon, thus establishing a precedent in common law.
At the state level, legislatures often codify common-law rules from the courts of their state to give the rule the permanence of a statute or to modify or replace it with legislation. An example is the 2018 California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court, which articulated a three-part test for determining whether California workers were independent contractors or employees. In response, the California Legislature created a new section of the Labor Code, thus codifying and expanding on the Dynamex holding.
In the US, common-law marriage, also known as sui juris marriage or informal marriage, is a form of irregular marriage that survives in a limited number of states and the District of Columbia. It is arguably the original form of marriage, where a couple takes up residency together, holds themselves out as a married couple, and behaves as such.
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Frequently asked questions
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Statutory laws are developed by the government of a state or nation and are organized and codified into law codes. They are strict in their application and are not subject to the same interpretation as common law.
Statutory law can interpret common law in some cases. For example, in Swift, the United States Supreme Court held that federal courts hearing cases under their diversity jurisdiction had to apply the statutory law of the states, but not the common law developed by state courts. However, in another case, Erie overruled Swift v. Tyson, and it was held that federal courts had to use the same substantive law as the courts of the states in which they were located.
Common law is more malleable than statutory law as common law courts are not absolutely bound by precedent and can reinterpret and revise the law without legislative intervention. Statutory law, on the other hand, is strict in its application and is not subject to the same interpretation as common law.
Common law and statutory law can coexist and complement each other. Common law fills in the interpretive gaps in statutes, and because we want those interpretations to be consistent, it has a similarly binding authority as the statute.
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