Kara Sears
Statute law and common law are two distinct ways of creating laws. Statute law, also known as legislation, is created when a bill is passed by parliament. In contrast, common law, also known as case law or judge-made law, is created when judges make decisions in court based on precedents from previous similar cases. Common law has been used in England since the Middle Ages and has influenced the legal systems of many Commonwealth countries and the United States. While statute law takes precedence over common law, common law is often used to make decisions in areas not covered by statute law.
| Characteristics | Values |
|---|---|
| Basis | Common law is based on judicial precedent. Statute law is created by legislative bodies. |
| Written or unwritten | Common law is unwritten and based on case decisions. Statute law is written and codified. |
| Interpretation | Common law is interpretive and evolves through court decisions. Statute law is applied as written and tends to be more rigid. |
| Reinterpretation | Common law can be reinterpreted by judges. Statute law can be amended or repealed by lawmakers. |
| Creation | Common law is made by judges in courts. Statute law is made by parliament. |
| Basis of creation | Common law is based on judgments made in the past. Statute law has statutes as its basis. |
| Overriding law | Statute law always overrides common law. |
Explore related products
What You'll Learn
Statute law is made by parliament
Statute law, also known as legislation, is made by parliament. It is a written and codified form of law that is applied as written and tends to be more rigid than common law. Statute law is created by legislative bodies and can be passed by various government agencies, including federal and state governments, as well as towns and cities. In Australia, for example, a bill becomes a law after it has been passed by a majority vote in both the House of Representatives and the Senate and is given Royal Assent by the Governor-General. This process is known as an Act of Parliament.
Parliament has the power to create statutes that override common law, and statutes always prevail in cases of conflict between the two types of law. Statute law can also codify existing common law, create new causes of action that did not exist in common law, or legislatively overrule common law.
The process of creating statute law typically involves several stages. Firstly, a bill, which is a proposal for a new law or a change to an existing one, is introduced to the House of Representatives. This is followed by a second reading where members debate and vote on the main idea of the bill. The bill then moves to the House committee stage, which is optional, where a public inquiry into the bill is conducted and the results are reported back to the House. The next stage, consideration in detail, is also optional, and involves members discussing the bill in detail and proposing any necessary changes.
Finally, the bill moves to the Senate committee stage, which is again optional, where another public inquiry may be conducted, this time by senators, who will report back to the Senate. This is followed by the committee of the whole stage, where senators discuss the bill in detail, including any proposed changes. The bill then proceeds to the third reading, where senators vote on the bill in its final form. If passed, the bill is given Royal Assent and becomes an Act of Parliament, thereby becoming a statute law.
While the above process specifically outlines the path of a bill through the Australian Parliament, the creation of statute law by parliamentary bodies follows a similar structure in other countries as well.
Common Law Contracts: When Does It Apply?
You may want to see also
Explore related products
Common law is made by judges in court
Common law, also known as case law, is made by judges in court. It is based on judicial precedent, meaning that it depends on rulings from prior cases. Judges refer to past cases and use the judgments as a basis for deciding on the current case. This is in contrast to statutory law, which is written and codified.
Common law is unwritten and based on case decisions. It is interpretive and evolves through court decisions. It is often referred to as 'judge-made' law. It is separate from statutory law and does not rely on any Act of Parliament. Common law was the main body of law for several hundred years before Parliament acquired legislative powers to create statutory law.
When judging cases, judges use precedent, or decisions made in previous similar cases, to guide their rulings. If no past cases with similar circumstances exist, a judge will make a new decision, which then becomes a precedent for similar cases in the future. This is how common law is created.
Common law can be found in the decisions of courts, and it is often difficult to find the common law that applies to a specific situation as it is not contained in a single court decision. Instead, different parts of it are set out in different decisions. Common law can also be seen as having two types: one where judgments passed become new laws where no statutes exist, and another where judges interpret existing law and determine new boundaries and distinctions.
Study Law and Work: Is It Possible?
You may want to see also
Explore related products
Parliament has the power to overrule common law
Common law, also known as case law, is unwritten and based on precedent. It is interpretive and evolves through court decisions, with judges interpreting and applying the law. Statutes, on the other hand, are written and codified, applied as written, and can be amended or repealed by lawmakers.
In the UK, Parliament has the power to create statutory law, which can supersede common law. This is because the UK follows the doctrine of parliamentary sovereignty, which holds that Parliament has supreme legislative authority. This means that Parliament can pass legislation that overrules common law. For example, in the case of Omychund v. Barker, it was contended that "a statute very seldom can take in all cases; therefore the common law, that works itself pure by rules drawn from the fountain of justice, is for that reason superior to an act of parliament". This suggests that while common law is flexible and can adapt to new situations, statutes are more rigid and may not always be able to address all possible scenarios.
However, it is important to note that the relationship between the rule of law and parliamentary sovereignty is complex. While Parliament has the power to overrule common law, it does not mean that it can act without regard for the law. The capacity of courts to ensure the lawfulness of executive action is crucial for upholding the rule of law. If Parliament passes legislation that is incompatible with the European Convention on Human Rights, for instance, it is the judiciary's role to interpret and apply the law, and they may declare the legislation incompatible with the Convention rights.
In the US, the Supreme Court can play a similar role in checking the power of the legislature. The Supreme Court can declare legislation invalid if it is unconstitutional, although this does not automatically invalidate the law in question. Instead, it requires Congress to consider amending the law to bring it into compliance with the Constitution.
In both the UK and the US, there is a delicate balance between the powers of the legislature and the judiciary. While Parliament or Congress may have the power to overrule common law, it is essential that they respect the role of the courts in interpreting and applying the law, and ensure that their actions do not undermine the rule of law.
Insurance and Law Enforcement: When Can They Demand It?
You may want to see also
Explore related products
Common law is based on precedent
Common law, also known as case law, is based on precedent. It is unwritten and uncodified, evolving through court decisions and interpretations by judges. Common law is often referred to as 'judge-made' law. Judges make decisions in courts based on previous rulings, known as precedents, which guide their judgments in similar cases. This process of relying on past judgments and creating precedents for future cases has been the primary source of law for several hundred years.
The early development of case law in the 13th century resulted in yearly compilations of court cases known as Year Books. These publications are a principal source of knowledge regarding the evolution of legal doctrines, concepts, and methods during the formative years of common law. Over time, as different types of disputes emerged and customs evolved, common law changed and developed accordingly.
In contrast to the rigidity of statutory law, common law is interpretive and flexible. It allows judges to reinterpret the law and establish new boundaries and distinctions. This adaptability ensures that the law remains relevant to the citizens it governs. For example, common-law marriage recognises couples who meet certain criteria as legally married, even without a formal ceremony or license.
Common law is particularly relevant when no statute law applies to a specific situation. However, it is important to note that statute law, created by legislative bodies, always supersedes common law. This means that in the event of a conflict between the two, statutory law prevails.
EEOC: Your Rights and Violations Explained
You may want to see also
Explore related products
Common law applies when statute law doesn't
Common law, also known as case law, is a legal system that includes judicial precedent as a binding source of law. It is primarily developed through judicial decisions rather than statutes. It is based on precedent, which means it depends on rulings from prior cases. These historical rulings from federal, state, or local courts set the precedent for future legal decisions. Common law is unwritten, interpretive, and evolves through court decisions. It is also known as judge-made law.
Statutory law, on the other hand, is created by legislative bodies and is written and codified. It is applied as written and is more rigid. Statutes generally supersede common law and may codify existing common law, create new causes of action, or legislatively overrule common law.
While both common law and statutory law are essential to the legal system, they are applied differently. The application of each depends on the nature of the crime and the attorney's ability to apply them strategically.
Common law applies when there is no applicable statute law. It fills in the gaps in statutory law by providing a basis for decision-making in situations not covered by specific statutes. For example, in the United States, federal common law has been limited to certain jurisdictions stated in the Constitution, such as admiralty law and possibly areas outside traditional state law jurisdiction. In these situations, federal courts can create federal common law rules without express statutory authority to protect uniquely federal interests.
Additionally, in some areas of law, common law still has practical applications, such as in contract law, where common-law marriage recognizes couples as legally married even without a formal ceremony or license.
Challenging Laws: Courts and Legal Boundaries
You may want to see also
