Anaya Nolan
Common law and statutory law are the two main types of law within a legal system. Common law is unwritten and based on previous case decisions, while statutory law is written and formally passed by a legislative body. Statutory law is also referred to as civil law and is more rigid in its application, whereas common law is interpretive and evolves through court decisions. Both types of law set standards of acceptable behaviour and justice for citizens and the government. This topic will explore the differences between common law and statutory law and how they interact with each other.
| Characteristics | Values |
|---|---|
| Creation | Common law is unwritten and based on case decisions. Statutory law is created by legislative bodies and is written and codified. |
| 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 Statutory law can be amended or repealed by lawmakers. |
| Nature | Statutory law is also called civil law. |
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What You'll Learn
The nature of common law and statute
In contrast, statutory law, or simply "statute," is created and codified by legislative bodies at the local, state, or federal level. It is written down and formally passed, making it more rigid in its application. Judges apply statutes as they are written without relying on past cases for interpretation. Statutes can be amended, repealed, or updated by lawmakers, ensuring their adaptability and relevance.
Both common law and statute play essential roles in setting standards of acceptable behaviour and justice for citizens and governments. They interact and overlap in various legal contexts, particularly in criminal cases, where understanding both types of law is crucial. The interaction between common law and statute can influence the outcome of cases, as statutes can be interpreted differently based on precedent and previous rulings.
Statutes are particularly important at the federal level, where they represent the supreme law of the land. Federal statutes, enacted by Congress, must be followed by all states and cannot violate the United States Constitution. Federal statutes often focus on interstate aspects, such as the protection of migratory birds or the regulation of endangered animals.
At the state level, statutes provide the framework for comprehensive structures, such as animal law in New Mexico. While states have the authority to regulate animals within their borders, they must not contradict federal statutes or the state and federal constitutions. State statutes can be challenged and interpreted by the Supreme Court to ensure compliance with constitutional requirements.
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How statutes are created
Statutes, also known as acts, are laws passed by a legislature. In the United States, federal statutes are the laws passed by Congress, usually with the approval of the President. The process of creating a statute typically involves the following steps:
- Bill Proposal: A bill is a proposed new law or amendment to an existing law that has not yet been approved by legislators. It can be introduced by members of the legislative body or drafted into a bill by a committee.
- Legislative Debate and Amendment: The proposed bill is then debated by the members of the legislative body, who may suggest amendments or modifications. This process involves extensive discussion, deliberation, and negotiation to refine the language and scope of the bill.
- Voting and Approval: After the debate and amendment process, the bill is put to a vote in the legislative body. The specific voting procedures and requirements may vary depending on the legislative body and the type of bill. A simple majority may be required in some cases, while other bills may need a supermajority or a specific number of votes.
- Executive Approval: In some cases, the bill may require approval from the executive branch, such as the President or the relevant government minister. This step may involve a review and signing of the bill by the executive authority.
- Enactment and Publication: Once a bill is approved, it becomes an Act or a statute. It is then enacted and published as a law. The publication process may involve printing the statute in official records, government gazettes, or online databases, ensuring that the law is accessible to the public.
- Implementation and Enforcement: The newly created statute is implemented and enforced by the relevant government agencies or bodies. This may involve interpreting the statute, developing regulations or guidelines, and ensuring compliance through established procedures.
It is important to note that the specific process of creating statutes can vary between different legislative systems and jurisdictions. The steps outlined above provide a general overview of the typical process involved in statute creation.
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Common law and statutes in criminal cases
Common law and statutory law are the two main types of law within a legal system. Common law is unwritten and based on case decisions, whereas statutory law is written and codified. Common law is also known as case law, and it draws from interpretations and opinions from judicial authorities and public juries. It is based on precedent and stare decisis, which means that courts follow precedents established by previous decisions. Common law is also deeply rooted in the belief of 'to stand by things decided'.
Statutory law, on the other hand, is created by legislative bodies and is more rigid in its application. It is also called civil law and is subject to change. It can be amended or repealed by lawmakers.
In criminal cases, both types of law are important. A skilled attorney will know the statute and also how precedent may influence the case's outcome. The nature of the crime determines whether a case is governed more by statutory or common law. For example, in criminal cases, previous interpretations of a statute may affect sentencing, defences, or even whether the charges are valid.
Common law and statutory law are not mutually exclusive. Common law may incorporate certain statutes, and statutory law is often based on precedent.
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The interaction of federal statutes and state law
The United States Constitution, federal statutes, and treaties are the supreme law of the land, and state courts are bound to interpret and apply federal law. This is known as the Supremacy Clause, which establishes that federal law takes priority over conflicting state laws. Congress can establish rules that American courts are required to follow, even if state law provides different rules.
The Supremacy Clause also gives Congress the authority to restrict what state law can say about certain topics, or even place them off-limits to state law entirely. Federal statutes can displace or "preempt" state law, as recognised by the Supreme Court. This means that federal statutes can override aspects of each state's constitution and bill of rights.
Federal courts, particularly the Supreme Court, are the final authority on interpreting federal law. They have the power to review state court decisions that conflict with the Constitution or federal law. However, federal courts may decline to assert jurisdiction over a case out of respect for the sovereign authority of state courts. State courts are generally authorised to hear claims involving federal law, except where federal courts have exclusive jurisdiction.
In some cases, a complainant bringing a claim under federal law must first exhaust state legislative or administrative remedies before seeking relief in federal court. This is known as the Exhaustion Doctrine.
Federal statutes are created by legislative bodies and are written and codified, while common law is unwritten and based on court decisions. When interpreting federal statutes, courts often act as if answers should be imputed to the statute itself, even if it is silent on certain questions. This can produce dramatically different results compared to state statutes, which are often interpreted as being beyond the statute's domain.
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The role of judges in common law
In common law, judges are typically appointed or elected to office, with no competitive examination. In common-law countries, the path to judicial office is quite different. Upon completion of formal legal education, a person usually spends a significant amount of time in private law practice or, less commonly, in law teaching or government legal service before becoming a judge. In England, the appointive system prevails for all levels of judges, including lay magistrates. Appointments are primarily controlled by a Judicial Appointments Commission, and judges are kept surprisingly free from party politics.
In the United States, the appointive method is used in federal courts and some state courts, but ideological and partisan considerations play a significant role in appointments, especially at the federal level. All appointments to the federal bench and many appointments to the state judiciary are made by the chief executive (president or governor). The appointing authority must select from a submitted list. The chosen judge then assumes office for a limited time and, after this probationary period, stands for "election" for a longer term. In practice, few judges are removed from office through retention ballots. These different selection systems balance democratic accountability and judicial independence.
In common-law countries, a person may be appointed or elected to the country's highest or intermediate courts without prior judicial experience. Even courtroom experience is not a prerequisite for a judgeship in the United States. There is no regular pattern of promotion, and judges are not assured of a long tenure. While in office, common-law judges enjoy greater power, prestige, and independence than their civil-law counterparts. They are not subject to outside supervision or inspection by a council of judges or a minister of justice, nor can they be transferred from court to court.
Common law places great weight on precedent, while civil law judges tend to give less weight to judicial precedent. Common law is interpretive and evolves through court decisions, and judges can reinterpret it. In contrast, statutory law is more rigid and is applied as written. In criminal cases, understanding both types of law is vital, as precedent may influence the outcome. Common law courts usually employ an adversarial system, where two sides present their cases to a neutral judge. Judges generally decide the case presented to them, rather than actively investigating or reframing issues.
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Frequently asked questions
Common law is unwritten and based on previous court decisions. Statute, or statutory law, is written and codified by a legislative body.
Common law is sometimes called ""judge-made" law. It is based on the written decisions of judges who hear and decide litigation (lawsuits). When a judge decides a case and publishes a written decision, the decision becomes the precedent for future litigation.
Statute law is created by legislative bodies. A law begins as a bill which is proposed in the legislature and voted upon. The proposed 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, passes into law as a statute.
Yes, statute law always overrides common law. However, a skilled attorney will know how precedent may influence a case’s outcome. For example, if the statute seems clear but previous cases have interpreted it differently, those rulings could affect sentencing, defences, or even whether the charges hold up in court.
