Gavin Howe
The question of whether statutes supersede common law is a complex one. Common law, also known as case law, is unwritten and based on precedent, evolving through court decisions. In contrast, statutory law is created by legislative bodies and is written and codified, applied as it is written. While common law was the primary source of law for several hundred years, the development of more comprehensive legislation has narrowed the scope of common law. In general, statutes take precedence over common law, as they represent the will of the people enacted through their elected representatives. However, there are still areas where common law is applied, such as contract law and the law of torts.
| Characteristics | Values |
|---|---|
| Common law | Uncodified, unwritten, based on precedent and case decisions |
| Statutory law | Codified, written, created by legislative bodies, rigid |
| Relationship between common law and statutory law | Statutes supersede common law, legislation has primacy over common law |
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What You'll Learn
Common law is based on precedent
Common law, also known as judicial precedent, is a body of law that is primarily developed through judicial decisions rather than statutes. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". This means that common law is largely based on precedent, or past judicial rulings made in previous similar cases. The doctrine of precedent developed during the 12th and 13th centuries as collective judicial decisions based on tradition, custom, and precedent.
In common law systems, courts rely heavily on case law, where past judicial decisions serve as precedents to guide future rulings. This promotes consistency and predictability in the law. Precedent can be binding, meaning that courts must follow it, or persuasive, meaning that courts can consider it but do not have to follow it. The presiding judge determines which precedents to apply when deciding each new case.
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. For example, in the United States, the National Labor Relations Board promulgates most of its substantive rules through common law, which gives it the flexibility to adapt to changing circumstances.
While common law is based on precedent, it is important to note that statutes can trump common law. This means that if there is a conflict between a statute and common law, the statute will take precedence. This is because legislation represents the will of the people as enacted through their elected representatives and is thus given primacy over common law. However, the constitution is paramount to both legislative enactments and common law.
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Statutory law is created by legislative bodies
Statutory law, also known as written law, is created by a legislative body. It is distinct from regulatory, administrative, and common law. Regulatory or administrative laws are passed by executive agencies, while common law is generated through court decisions.
Statutory law in the United States comprises laws passed by the federal legislature, or Congress, and signed by the President. These laws are designated as Public Laws or Private Laws. Public laws relate to the general public, while private laws relate to specific institutions or individuals. Most of the laws passed by Congress are public laws. Once a bill is passed by Congress and signed by the President, it becomes a Public Law and receives a Public Law number based on the Congress and when it was issued. For example, P.L. 101-5 would be the fifth law enacted in the 101st Congress. Public laws are first published as slip laws and are then bound into the Statutes at Large.
At the state level, statutory laws are passed by the state legislature and signed by the state governor. Each state has its own state statutes, found in state codes. For instance, Washington State has the Revised Code of Washington, which is a compilation of all permanent laws currently in force. It is a collection of Session Laws enacted by the Legislature and signed by the Governor, arranged by topic, with amendments included and repealed laws removed.
Statutory laws are typically arranged by title, then chapter, and then section. The legislative history of a statute, which includes documents such as revisions, debates, hearings, and reports about a bill, can be crucial in understanding the intent behind a particular law.
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Common law is more malleable
Common law is a body of unwritten laws based on legal precedents established by the courts. It is derived from its original appearance in medieval England and is still in effect in the US, the UK, and many other countries today. Common law is deeply rooted in stare decisis, which means "to stand by things decided" in Latin. It is also known as case law or judge-made law.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. This means that common law can be influenced by societal changes and shifts in popular thought, which can lead to the overturning of outdated or biased precedents. For example, as technology continues to play a larger role in our lives, common law's ability to leave the legal code open for interpretation will become increasingly important.
However, it is important to note that both common law and statutory law are necessary for serving justice and are followed by most nations worldwide. They interact with each other and with other legal systems, such as regulatory law. While common law is more flexible, it may not always be better in every situation. For instance, civil law can be clearer than case law when the legislature has specifically addressed the precise set of facts applicable to a particular situation.
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Statutory law is more rigid
Statutory law, also known as the "will of the people", is more rigid than common law. It is created and passed by the legislative branch of the government, and it consists of written laws that can be looked up or located in databases or books. These laws come in the form of bills or acts and are often codified, meaning they are numbered, collected, and indexed in one place.
The rigidity of statutory law can be seen as a disadvantage in some cases, as it may not always account for the complexities and nuances of individual cases. Judges may need to exercise discretion and interpret the law when dealing with cases that are more open to interpretation. However, statutory law can be amended or repealed by lawmakers, although this process is typically long and involved.
The relationship between statutory law and common law is important to understand. While statutory law takes precedence over common law, common law fills in the gaps where statutory law is silent. This means that common law can still play a significant role in shaping legal outcomes, even in the presence of statutory law.
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Common law is unwritten
In the context of whether statutes trump common law, it is important to understand the nature of common law. Common law, also known as case law, is a body of unwritten laws based on legal precedents and judicial decisions. It is distinct from civil law, which is a comprehensive, codified set of legal statutes created by legislators.
Common law is often referred to as "unwritten law" or "lex non scripta". This concept of common law being unwritten is deeply rooted in its history and evolution. According to legal scholars like William Blackstone, the authority of unwritten law derived from its widespread usage and acceptance throughout the kingdom. This view was echoed in the United States Supreme Court case of Levy v. McCartee, where the Court affirmed that common law is "the unwritten law of the land, independent of statutory enactments".
The nature of common law as unwritten law is significant because it highlights its flexibility and adaptability. Common law draws from institutionalized opinions, interpretations, and precedents set by judicial authorities and public juries. This allows for a certain level of freedom in interpretation and ensures that the law can be applied to unique situations not contemplated by existing statutes. For example, the concept of common-law marriage, which grants similar rights to couples who are not officially married, is an example of how common law can adapt to new social situations.
However, the unwritten nature of common law also presents challenges and complexities. Without a formal code, common law relies on detailed records of similar situations and judicial precedents. The presiding judge plays a crucial role in determining which precedents apply to a particular case, and their decisions can shape the outcome. While higher courts' precedents are typically binding on lower courts, lower courts have some flexibility to modify or deviate from precedents if the current case is substantially different.
In conclusion, the understanding that common law is unwritten is fundamental to its nature and function. This characteristic of common law allows for adaptability and interpretation, but it also relies heavily on judicial discretion and precedent. While statutes may take precedence over common law in conflicts, as noted by Justice Albin, the unwritten nature of common law provides a foundation for legal decision-making in situations where statutes may not provide clear answers.
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Frequently asked questions
Common law, also known as case law, is unwritten and uncodified, and is based on precedent. It is a collection of previous case precedents and is dependent on judicial rulings from prior cases.
Statutory law is created by legislative bodies and is written and codified. It is also referred to as civil law and is applied as written.
Common law is more malleable than statutory law and can be reinterpreted by judges. It evolves through court decisions and promotes consistency in the legal system.
Yes, statutes supersede common law. Justice Albin rejected the argument that common law took precedence over statutory law, stating that "legislative enactments are never subservient to the common law when the two are in conflict with each other."
