Keith Mack
There are two main types of law within the legal system: common law and statutory law. Common law is based on the concept of precedence, which requires judges to decide a case based on prior rulings. Statutory law, on the other hand, is codified and written down by a legislative body. It is also referred to as civil law and is more rigid in its application. While both types of law are essential, there is an ongoing debate about whether statutory law overrides common law.
| Characteristics | Values |
|---|---|
| Nature | Common law is unwritten and based on case decisions. Statutory law is written and codified. |
| Formation | Common law is based on judicial precedent. Statutory law is created by legislative bodies. |
| Application | Common law is interpretive and evolves through court decisions. Statutory law is applied as written and is more rigid. |
| Amendment | Common law can be reinterpreted by judges. Statutory law can be amended or repealed by lawmakers. |
| Precedence | Statutory law overrides common law. |
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What You'll Learn
Statutory law is created by legislative bodies
Statutory law, also known as civil law, is created by legislative bodies and is written down and formally passed at the local, state, or federal level. In the United States, federal statutory law is created by the legislature and signed by the President, becoming a public or private law. Public laws relate to the general public, while private laws relate to specific institutions or individuals. Most laws passed by Congress are public laws.
The process of creating a law begins with a bill proposed in the legislature, which is then voted on. This 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 does not sign the bill, it can be vetoed and returned to the legislature. However, if the legislature passes the bill a second time with a certain majority, it can override the veto and the bill becomes a statute.
The legislative history of a statute refers to the documents created during its progress through the legislature, including revisions, debates, hearings, and reports. These documents are valuable for understanding the intent behind a particular law. Statutes are typically arranged by title, then chapter, and then section, and can be found in statutory codes. For federal law in the United States, the statutes can be found in the United States Code, while each state has its own state statutes, such as the Revised Code of Washington for Washington State.
While statutory law is written and codified, common law is unwritten and based on judicial precedent and court decisions. Common law is interpretive and can be reinterpreted by judges, evolving through court decisions. In contrast, statutory law is more rigid and applied as written, without relying on past cases for interpretation.
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Common law is based on precedent
There are two main types of law within the legal system: common law and statutory law. While statutory law is codified and written down, common law is unwritten and based on precedent. This means that it is primarily developed through judicial decisions and past rulings, also known as case law.
Common law, also referred to as judicial precedent, is deeply rooted in the principle of stare decisis, which translates to "to stand by things decided". This means that past judicial decisions are used as a reference to guide future rulings, thereby promoting consistency and predictability. The presiding judge determines which precedents to apply when deciding on a new case. When a similar case has already been resolved, courts typically follow the precedent set in that previous decision. However, in cases where there is no applicable precedent, judges are empowered to establish a new precedent.
The doctrine of precedent, which is fundamental to common law, developed during the 12th and 13th centuries as collective judicial decisions based on tradition, custom, and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning. In some mixed systems, such as Scots Law in Scotland and South African Law, the law does not fit neatly into the civil vs. common law dichotomy as it combines elements of both. For example, in Scotland, the use of precedent is subject to seeking the principle that justifies a law rather than simply using an example as a precedent, with natural justice and fairness playing a significant role.
Common law is recognised in various jurisdictions worldwide, including India, Pakistan, Bangladesh, and the law of Quebec and Louisiana, which have mixed systems influenced by both civil and common law traditions. In the United States, most executive branch agencies honour their own precedent to ensure consistent results, and agency decision-making is governed by the Administrative Procedure Act of 1946.
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Statutory law is written, common law is unwritten
There are two main types of law within the legal system: common law and statutory law. Both types of law set standards of acceptable behaviour and justice for citizens and the government.
Statutory law is written, formal, and passed by a legislative body at the local, state, or federal level. It is also referred to as "civil law" and is more rigid in its application. Judges apply statutory law as it is written, without relying on past cases to interpret it. However, statutory law is still subject to change, as it can be overturned, modified, or updated by later legislatures, 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. This adaptability ensures that statutory law remains relevant to the people it governs.
On the other hand, common law is unwritten and based on case decisions and precedent. It is also known as "judge-made law" or "case law". Common law is interpretive and evolves through court decisions, with judges empowered to reinterpret and establish new precedents. It is not collected in a single source but is instead a documented collection of previous case precedents. For example, in the United States, common-law marriage recognises couples who meet certain criteria as legally married even without a formal ceremony or license.
In criminal cases, understanding both types of law is vital. The nature of the crime and the defence attorney's ability to apply both types of law strategically can significantly impact the outcome of a case.
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Statutory law can be amended or repealed
Statutory law, also known as civil law, is a written and codified form of law that is formally passed by a legislative body at the local, state, or federal level. It is much more rigid in its application, with judges applying the law as it is written without relying on past cases to interpret it.
Despite being written into law, statutory law can be amended or repealed by lawmakers. This is done through the legislative process, which involves the introduction and passage of bills that propose changes to existing laws. For example, a bill may directly alter the text of a current law by inserting new text, striking out existing text, or both. This process allows for the adaptation of statutory law to ensure it remains relevant to the people it governs.
The legislative process in the United States involves both the House of Representatives and the Senate, with the majority of laws originating in the House. A bill may be proposed by a member of either chamber, often in response to a campaign promise or a recognized need for change in existing law. The bill then undergoes a committee process, where it is reviewed and may be amended before being reported back to the House or Senate.
If the committee votes to report the bill, a committee report is written, describing the purpose, scope, and reasons for the bill's approval. This report must also include a section-by-section analysis of the bill's intended effects and indicate any changes to existing law, following rules such as the "Ramseyer" rule in the House and the "Cordon" rule in the Senate.
After the committee process, the bill is debated and voted on by the full chamber. If passed by a simple majority in the House, the bill then moves to the Senate, where it undergoes a similar process, including potential amendments. For a bill to become law, it must be approved by both chambers of Congress, demonstrating the importance of the legislative process in safeguarding against hasty or ill-advised proposals.
In conclusion, while statutory law is written and codified, it is not static and can be amended or repealed through the legislative process. This process involves the introduction, debate, and approval of bills by both the House of Representatives and the Senate, ensuring a thorough review and consideration of proposed changes to existing laws.
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Common law can be reinterpreted by judges
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law or judge-made law. It is deeply rooted in stare decisis, which means "to stand by things decided" in Latin. In other words, common law is decided by judges' interpretation and application of previous rulings to new cases. When a court faces a legal argument, judges determine which precedents to apply in deciding each new case. They refer to previous similar cases and use the judgments rendered then as a basis for deciding the current case.
Common law is more malleable and adaptable than statutory law. It is not bound by precedent and can be reinterpreted and revised by judges without legislative intervention. It evolves gradually over time, adapting to new trends and philosophies. This is in contrast to statutory law, which is more rigid in its application and is applied as written.
The presiding judge determines which precedents to apply in deciding each new case. Common law courts are not absolutely bound by precedent, but can (when an extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal, and social philosophy. For example, in a case of first impression with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent.
Lower courts can also 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. This flexibility of common law allows it to adapt to changing societal needs and values as judges interpret and apply legal principles in light of contemporary circumstances.
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Frequently asked questions
Common law is unwritten and based on case decisions and precedent. It is interpretive and evolves through court decisions and can be reinterpreted by judges.
Statutory law is created by legislative bodies and is written and codified. It is more rigid and is applied as written. Statutory law can be amended or repealed by lawmakers.
Yes, statute law always overrides common law. However, statute law cannot override constitutional case law.
In the UK, the landmark case R v R saw the House of Lords abolish the common-law principle that a man could be found guilty of raping his wife. This case demonstrated how statutory law can override established judicial precedents.
