Keith Mack
Common law and statutory law are the two main types of law within a legal system. Statutory law, also known as civil law, is codified and written down by a legislative body at the local, state, or federal level. It is more rigid in its application and can be amended or repealed by lawmakers. On the other hand, common law is unwritten and based on case decisions and judicial precedent. It evolves through court decisions and can be reinterpreted by judges. While statutory law generally overrides common law, there are instances where common law takes precedence, such as when no statute law applies to a specific situation.
| Characteristics | Values |
|---|---|
| Definition | Common law is unwritten and based on past case decisions and judicial precedent. Statutory law is written and codified, created by legislative bodies. |
| Applicability | Common law is interpretive and evolves through court decisions. Statutory law is applied as written and is more rigid. |
| Adaptability | Common law can be reinterpreted by judges. Statutory law can be amended, repealed, overturned, modified, or updated by lawmakers. |
| Hierarchy | Statutory law is considered supreme and overrides common law. |
| Nature | Statutory law is also called civil law. |
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What You'll Learn
Common law is unwritten and based on precedent
Common law and statutory law are the two main types of law within a legal system. Statutory law, also known as civil law, is codified and written down, and is passed by a legislative body. Common law, on the other hand, is unwritten and based on precedent.
Common law, also referred to as case law, is derived from judicial decisions, or stare decisis, rather than statutes or constitutions. It is based on the principle of 'judge-made law', where judges interpret and apply the law, and it evolves through court decisions. The doctrine of precedent in common law developed during the 12th and 13th centuries, and is deeply rooted in the idea of 'to stand by things decided', where courts follow precedents from previous rulings. The presiding judge determines which precedents to apply in each new case, and precedent can be modified or deviated from if it is outdated or if the current case is substantially different.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is based on societal customs and is recognized and enforced by the judgments and decrees of the courts. It is deeply rooted in stare decisis, which is a history of judicial decisions that form the basis of evaluation for future cases. Common law is interpretive and allows for freedom in interpretation, which means the law can be adapted to situations not contemplated by the legislature.
The nature of common law as unwritten and based on precedent means that it is adaptable and flexible, and can be reinterpreted by judges. This is in contrast to statutory law, which is more rigid and applied as written, without relying on past cases to interpret it. However, statutory law can be amended or repealed by lawmakers, and is subject to change, whereas common law is based on precedent and can be more stable and consistent.
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Statutory law is written and passed by legislative bodies
There are two main types of law within the legal system: common law and statutory law. While common law is unwritten and based on previous case decisions, statutory law is written down and formally passed by a legislative body at the local, state, or federal level. Statutory law is also referred to as "civil law" and is more rigid in its application.
Statutory law is created by legislative bodies, such as legislatures, administrative boards, and municipal courts. In the United States, federal statutory law consists of acts passed by Congress, designated as Public Laws or Private Laws. Public laws relate to the general public, while private laws deal with specific institutions or individuals. Most laws passed by Congress are public laws.
The process of creating statutory law begins with a legislative body proposing a bill. The bill is then put to a vote, and if it passes, it is sent to the executive branch of the government, such as the President or a state governor. The executive branch can choose to pass or veto the bill. If vetoed, the bill is returned to the legislative body. If passed by the executive branch, the bill becomes a statute and is codified into law.
Statutory law is subject to change and can be amended, overturned, or updated by later legislatures. It is both strict in its application and adaptable to ensure its relevance. The process of statutory law creation involves careful research and consideration of the intent and potential impact of the law.
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Common law fills interpretive gaps in statutes
Common law and statutory law are the two main types of law within the legal system. Common law is unwritten and based on previous case decisions, while statutory law is written and codified by legislative bodies.
Common law is highly flexible and adapts to societal values and changes over time. It is predominantly interpretive, requiring judges to make decisions based on the interpretation of legislative law and precedent. It contributes to the development of legal principles.
Statutory law, on the other hand, is much more rigid in its application. It is prescriptive, outlining how individuals should act and stipulating the legal consequences of specific actions. Statutory law is applied as written, and when it is clear and unambiguous, it takes precedence over common law.
However, where statutory law is silent or ambiguous, common law principles may be invoked to fill interpretive gaps in the statute and resolve disputes. This is because common law is based on judicial precedent and evolves through court decisions. Judges interpret and apply statutory law, and in doing so, they rely on precedent and the outcomes of previous cases. This allows for flexibility and adaptability in the legal system.
In summary, while statutory law generally takes precedence when it is clear and unambiguous, common law fills interpretive gaps in statutes when statutory law is silent or ambiguous. This combination of statutory law's stability and clarity with common law's adaptability ensures justice and equity within the legal system.
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Statutory law is more rigid and is applied as written
There are two main types of law within the legal system: common law and statutory law. Both set standards of acceptable behaviour and justice for citizens and the government. However, they come from different origins and are applied differently.
Statutory law is the primary type of law used by the judicial system. It is created by legislative bodies and passed by legislatures. In the US, for example, statutory law is passed by the United States Congress. These acts are designated as Public Laws or Private Laws. Public laws relate to the general public, while private laws relate to specific institutions or individuals.
Statutory laws are written laws that can be looked up or located in databases or books. They are also known as "civil law". They are precisely written and leave little room for interpretation. In other words, you can't simply "read between the lines" of statutory law. Judges apply the law as written, without relying on past cases to interpret it.
Statutory law is also codified, meaning it is written down and formally passed by a legislative body at the local, state, or federal level. It is subject to change and can be amended or repealed by lawmakers. It can be modified or overturned, especially if it is found to be unconstitutional. Some statutes are even written with an expiration date and must be renewed if still deemed necessary. In this way, statutory law is both strict and adaptable, ensuring that the law remains relevant to the people it governs.
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Common law is more malleable and can be reinterpreted by judges
Common law is a body of unwritten laws based on legal precedents and previous rulings. It is deeply rooted in the concept of stare decisis, which means "to stand by things decided" in Latin. This means that common law is decided by judges interpreting and applying previous rulings to new cases.
Common law is more malleable than statutory law and can be reinterpreted and revised by judges without legislative intervention. It is not absolutely bound by precedent, allowing it to gradually evolve over time and adapt to new trends in political, legal, and social philosophy. This flexibility ensures that common law remains relevant and reduces the disruptive effects of changing laws.
The ability of judges to reinterpret common law is particularly important in ""cases of first impression," where there is no clear legislative guidance. In such cases, judges are empowered to establish new precedents and resolve issues, making common law adaptable to unique or unprecedented situations. This process allows common law to be influenced by societal changes and shifts in popular thought, which can lead to the overturning of outdated or biased precedents.
The malleability of common law also offers certain advantages over statutory law. Common law is developed on an everyday basis without causing fractionalization of society or incurring any expense to the state. It provides a flexible framework that can be interpreted and applied by judges to meet the changing needs and values of society. 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.
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Frequently asked questions
Common law is unwritten and based on past case decisions and judicial precedent. It is interpretive and evolves through court decisions.
Statutory law is written and formally passed by a legislative body at the local, state, or federal level. It is also called civil law and is more rigid in its application.
No, statutory law overrides common law. However, if no statute law applies to a particular situation, common law will apply.
In the UK, the landmark case of R v R saw the House of Lords abolish the common-law principle that a man could not be guilty of raping his wife. This change highlighted how statutory law can override established judicial precedents.
