Keith Mack
Common law and statutory law are two distinct legal systems that coexist within the legal landscape. Common law, also known as case law, is a body of unwritten laws based on legal precedents and judicial decisions. It is interpretive and evolves through court rulings, allowing for flexibility and interpretation. In contrast, statutory law, also called civil law, is a codified set of written statutes created by legislative bodies. It is more rigid and applied as written, providing clear and consistent rules. While common law and statutory law differ in their sources and characteristics, they both play a crucial role in shaping the legal standards and justice within a jurisdiction. This raises an intriguing question: can common law ever become statutory law?
| Characteristics | Values |
|---|---|
| Basis | Common law is based on past judgments and judicial precedent. Statutory law has statutes as its basis. |
| Formation | Common law is interpretive and evolves through court decisions. Statutory law is created by legislative bodies. |
| Application | Common law is unwritten and based on case decisions. Statutory law is written and applied as written. |
| Adaptability | Common law can be reinterpreted by judges. Statutory law can be amended or repealed by lawmakers. |
| Jurisdiction | Common law is generally uncodified. Statutory law is codified and organised into law codes. |
| Nature | Common law is also known as case law. Statutory law is also called civil law. |
| Influence | Common law influences decisions in unusual cases where existing statutes are insufficient. Statutory law covers areas where common law is not applicable. |
| Adoption | Common law is adopted as a default law in newly independent nations that were formerly British colonies. Statutory law is adopted by legislative bodies at the local, state, or federal level. |
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What You'll Learn
Common law is unwritten, statutory law is written
Common law and statutory law are two of the most fundamental types of laws followed by most nations in the world. Common law is a body of unwritten laws based on legal precedents established by the courts. It is derived from judicial decisions instead of statutes and is deeply rooted in stare decisis, which means "to stand by things decided". Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is generally uncodified, meaning there is no comprehensive compilation of legal rules and statutes.
Statutory laws, on the other hand, are written laws that are passed by a legislature. They are developed by the government of a state or nation and are organized and codified into law codes. These laws are based on statutes and are already written, ready to be applied to specific cases. They cover all areas regulated by statutory laws exclusively, as well as areas where common law is not applicable. Statutes are also referred to as legislation and can be federal or state law.
While common law is unwritten, it can incorporate certain statutes and influence the creation of new legislation. For example, the UK has long had a common-law offence of "outraging public decency". In recent years, this ancient common law has been used to prosecute a new intrusive activity called "upskirting". In 2019, the UK Parliament passed the Voyeurism (Offences) Act, officially making upskirting a crime.
In summary, common law and statutory law differ in their sources and their written nature. Common law is unwritten and based on judicial decisions and precedents, while statutory law is written and based on statutes passed by a legislature.
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Common law is based on precedent, statutory law is not
Common law is a body of unwritten laws based on legal precedents established by the courts. It is derived from judicial decisions instead of statutes. Common law is more malleable than statutory law. Common law courts are not bound by precedent, but they can reinterpret and revise the law without legislative intervention. The law can change substantially over time, but without causing a sharp break, thereby reducing disruptive effects.
Common law is also known as case law and relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a particular case. The presiding judge determines which precedents apply to a case. Common law is developed on an everyday basis without causing fractionalization of society or expense to the state.
Statutory laws, on the other hand, are developed by the government of a state or nation and are organized and codified into law codes. They are written laws that need to be applied to specific cases. Statutory laws are based on statutes and are less flexible than common law. While common law is based on precedent, statutory law is not. Statutory law is developed through a legislative process that is lengthy and difficult to initiate.
Common law originated in medieval England and was the primary source of law for several hundred years before Parliament acquired legislative powers to create statutory law. Common law is still very much in effect in the US and other nations today. All US states, except Louisiana, have either implemented reception statutes or adopted common law by judicial opinion.
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Common law can be reinterpreted, statutory law can be amended
Common law and statutory law are the two main types of law within the legal system, and both set standards of acceptable behaviour and justice for citizens and the government. Common law is also known as case law and is a body of unwritten laws based on legal precedents established by the courts. It is largely based on precedent and judicial decisions instead of statutes. Common law is interpretive and evolves through court decisions, and it can be reinterpreted by judges. It is flexible and adaptable, leaving the legal code open for interpretation.
Statutory law, on the other hand, is created by legislative bodies and is written and codified. It is also called civil law and is much more rigid in its application. Statutory laws are developed by the government of a state or nation and are organized and codified into law codes. They are applied as written, and judges apply the law without relying on past cases to interpret it. However, statutory law can be amended or repealed by lawmakers. It is both strict and adaptable, as it can be overturned, modified, or updated by later legislatures, especially if they are found to be unconstitutional.
The determination of common law for a particular case involves research analysis, locating previous relevant cases, and extracting statements and sentences to determine the applicable common law. Common law is generally uncodified, with no comprehensive compilation of legal rules and statutes. While it relies on some scattered statutes, it is primarily based on precedent. Common law is derived from judicial decisions and interpretations from judicial authorities and public juries.
Statutory law, on the other hand, is already written and simply needs to be applied to specific cases. It is based on statutes and is created by legislative bodies at the local, state, or federal level. It is subject to change and can be updated to remain relevant to the people it governs.
In summary, common law is interpretive and flexible, evolving through court decisions and allowing for judicial interpretation. It is based on precedent and judicial decisions. Statutory law, on the other hand, is more rigid and written, created by legislative bodies and applied as written. However, it can be amended or repealed by lawmakers to ensure its relevance.
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Common law is based on past judgments, statutory law is based on statutes
Common law is a body of unwritten laws based on past judgments and legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided". Common law is derived from judicial decisions and rulings made in previous similar cases, rather than from statutes. It is generally uncodified, with no comprehensive compilation of legal rules and statutes. While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent. Judges determine which precedents to apply when deciding each new case.
Common law is also known as case law or judge-made law. It is being developed on a daily basis without causing fractionalization of society or expense to the state. It is followed in most nations around the world, including the United States, the United Kingdom, Australia, Canada, India, New Zealand, and Hong Kong.
Statutory law, on the other hand, is based on statutes and is developed by the government of a state or nation. It is organized and codified into law codes, covering all areas regulated by statutory laws exclusively, as well as areas where common law is not applicable. Statutory laws are already written and simply need to be applied to specific cases. Statutes may codify existing common law, create new causes of action, or legislatively overrule common law.
In some cases, common law and statutory law interact. For example, in the United States Supreme Court case United States v. Texas in 1993, the Court held that statutes that invade common law are to be read with a presumption favoring the retention of long-established principles unless a statutory purpose to the contrary is evident. In another instance, the Supreme Court of the United States in 1877 held that a Michigan statute did not abolish pre-existing common-law marriage because the statute was silent as to preexisting common law.
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Common law is uncodified, statutory law is codified
Common law is a system of law that is derived from judicial decisions and precedent instead of statutes. It is largely uncodified, meaning there is no comprehensive compilation of legal rules and statutes. While common law does rely on some scattered statutes, it is primarily based on past judgments and precedent. The determination of common law for a particular case involves researching and analysing previous relevant cases, extracting statements and sentences, and applying the relevant common law.
In contrast, statutory law is codified and consists of written statutes developed by the government of a state or nation. These laws are organised and codified into law codes, covering areas regulated by statutory laws exclusively, as well as areas where common law is not applicable. Statutory laws are already established and simply need to be applied to specific cases. They are created by legislators and provide a comprehensive set of legal statutes.
Codification is the process of converting and consolidating uncodified statutes or judge-made laws into statute law. It is a defining feature of civil law jurisdictions and has been used in various legal systems throughout history. While common law systems, such as English law, typically feature uncodified common law, there have been instances where common law principles have been codified into statute law. For example, the English judge Sir Mackenzie Chalmers drafted several acts that codified existing common law principles, including the Sale of Goods Act 1893 and the Marine Insurance Act 1906.
It is important to note that the relationship between common law and statutory law is complex. While they are distinct, they can interact and influence each other. For example, in the context of former British colonies, reception statutes may be adopted, where the new nation receives and adopts pre-independence common law to the extent that it is not explicitly rejected by the new legislative body or constitution. This highlights how common law can be incorporated into statutory law through the process of codification.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law and is derived from judicial decisions instead of statutes.
Statutory law, also known as civil law, is a written and codified set of legal statutes created by a legislative body at the local, state, or federal level. It is more rigid in its application and is applied as written.
Common law becomes statutory law when it is adopted by a new nation as a reception statute. This occurs when a former British colony becomes independent and adopts the pre-independence common law of England. All U.S. states, except Louisiana, have implemented reception statutes or adopted common law by judicial opinion.
Yes, common law and statutory law can coexist within a legal system. They are the two main types of law and are both essential for setting standards of acceptable behavior and justice for citizens and the government.
