Anaya Nolan
Common law and statutory law are the two main types of law within a legal system. Common law, also known as case law, is uncodified and relies on past judicial opinions and precedent. Statutory law, on the other hand, is based on current statutes or written laws enacted by a legislative body. While common law helps promote a consistent interpretation of the law, statutory law is strict in its application and is not subject to the same interpretation. This text will explore the process by which common law becomes a statute, including the legislative history and the role of courts and legislative bodies in enacting laws.
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What You'll Learn
Common law vs. statutory law
Common law and statutory law are two essential components of the legal system, with each having different origins and applications. Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided". Here, the presiding judge determines which precedents to apply when deciding on new cases. Common law is not compiled into rules and statutes but relies on past judicial opinions.
Statutory law, on the other hand, is based on current statutes or written laws. It is also known as civil law and is strict in its application. Statutory laws are passed by various government agencies, including federal and state governments, and ordinances passed by towns and cities. They are flexible, allowing the law to remain relevant and reasonable to the people they protect and regulate. Statutes are subject to being overturned or changed if a later legislative body finds them unconstitutional.
Common law exists independently of any case, and the cases merely interpret the common law. In a "case of first impression", where there is no clear legislative guidance, judges are empowered to resolve the issue and establish new precedents. An example of this is the desegregation of schools in the Southern United States.
Statutory law, on the other hand, is a written law that can be located and read at a law library or online. It is codified and encompasses compiled legislation that has been passed at a local, state, or federal level. An example of statutory law is the prohibition of the sale of alcoholic beverages on Sundays before noon in North Carolina.
In summary, common law and statutory law differ primarily in their bases: common law is based on past judicial opinions and precedents, while statutory law is based on current written statutes. Common law is uncodified and flexible, while statutory law is strict in its application but can be overturned or changed.
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How common law is made
Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, a Latin phrase that means "to stand by things decided". In other words, common law is based on the idea that courts and judges should follow previous rulings when dealing with similar cases in the future.
The common law system evolved from a British tradition that spread to North America during the 17th and 18th centuries. It is now practised in several countries, including the United States, the United Kingdom, Australia, Canada, Hong Kong, India, and New Zealand. In the US, each state has its own common law, which derives from the tradition tracing back to England.
The common law of England was largely created in the period after the Norman Conquest of 1066, drawing from earlier Anglo-Saxon traditions such as the jury, ordeals, the penalty of outlawry, and writs. The early development of case law in the 13th century led to the yearly compilations of court cases known as Year Books, which are a principal source of knowledge for the developing legal doctrines, concepts, and methods of that period.
Common law is made by judges who interpret and apply the law to the facts of a particular case. Judges consider the facts of the case, previous judicial decisions (precedents), and sometimes the opinions of scholars to determine how the law should be applied. This process of judicial decision-making creates a body of law that evolves over time as judges interpret and apply the law to new situations.
While common law is based primarily on judicial decisions, it can also incorporate statutes and be influenced by institutionalized opinions and interpretations from judicial authorities and public juries. In some cases, common law can inspire new legislation to be enacted, and statutes can modify or replace common law rules.
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How statutes are made
Statutes, also known as acts, are laws enacted by a legislative body. Statutes are formal written enactments of a legislature that declare, command, or prohibit something. They are distinguished from common law, or unwritten law, in that they are the expressed will of a legislative body, whether that be on behalf of a country, state, province, county, or municipality. Statutes are developed by the government of a state or nation and are organized and codified into law codes.
In the United States, the process of making statutes typically begins with a bill, which is a proposal for a new law or a change to an existing law. A bill can be proposed by a sitting member of the U.S. Senate or House of Representatives, during their election campaign, or by petition from people or citizen groups. Once introduced, a bill is assigned to a committee that researches, discusses, and makes changes to it. The bill is then put before the chamber to be voted on. If the bill passes one body of Congress, it goes through a similar process in the other body. Once both bodies of Congress vote to accept a bill, they must work out any discrepancies between the two versions. If the bill is passed by both bodies of Congress, it is sent to the president, who may choose to veto it. If the president vetoes the bill, Congress can vote to override the veto, and the bill becomes a law. However, if the president does not sign off on a bill and it remains unsigned when Congress is no longer in session, the bill is vetoed by default, which is called a pocket veto, and cannot be overridden.
In addition to federal statutes, there are also state statutes passed by individual state legislatures, as well as ordinances passed by towns and cities, all of which have the power of law. These statutes are issued to meet the needs of citizens, resolve outstanding issues, and formalize existing laws.
After a statute is passed by a legislature, it is typically published in three forms: slip laws, session laws, and codes. Slip laws are individual pamphlets containing the text of a law as passed, session laws are annual compilations of laws passed in a legislative session, and codes are compilations of the laws in effect, organized by subject. Historical and superseded statutes can be used to determine what the law was at a particular time in the past.
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The relationship between common law and statutes
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided", where courts follow precedents established by previous decisions. Common law originated in the practices of the courts of English kings following the Norman Conquest and spread to North America during the colonial period. It is practised in the UK, US, Canada, Australia, New Zealand, India, and Hong Kong.
Statutory laws, on the other hand, are written laws passed by various government agencies, such as federal and state governments, or ordinances passed by towns and cities. They are developed by the government of a state or nation and are organized and codified into law codes. These laws are based on current statutes and are strictly applied, leaving less room for interpretation compared to common law. Statutory laws are flexible and can be renewed to remain relevant and reasonable to the people they govern.
While common law and statutory laws have different origins and applications, they often interact and influence each other. Common law may incorporate certain statutes, and in some cases, statutory laws are created to formalize, modify, or replace common law rules. For example, in the case of Dynamex Operations West, Inc. v. Superior Court, the California Supreme Court's decision led to the creation of a new section of the state's Labor Code, which codified and expanded on the original ruling.
In the US, the relationship between common law and statutory law has evolved over time. After the American Revolution, there was a drive to replace judge-made law with popular legislation. While the effort to create a national civil code failed, US law gradually became more statutory, with legislation taking precedence over judge-made law. Federal law, which governs areas such as taxes, labour, securities, and interstate commerce, is predominantly statutory and enforced by federal courts.
In summary, common law and statutory laws are two essential components of the legal system, each with distinct characteristics and roles. Common law relies on judicial precedent and past decisions, while statutory law is based on written statutes and codes. Their interaction and interplay contribute to the dynamic and evolving nature of the law, ensuring justice and acceptable standards of behaviour for citizens and their governments.
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How statutes become law
Statutes are laws enacted by a legislative body. In the United States, both the U.S. Congress and individual state legislatures have the power to pass statutes. Statutory law in the United States consists of the laws passed by the legislature. For the federal government, the statutory law is the acts 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.
A bill is a proposal for a new law or a change to an existing law. The idea for a bill can come from a sitting member of the U.S. Senate or House of Representatives or be proposed during their election campaign. Bills can also be petitioned by people or citizen groups who recommend a new or amended law to a member of Congress that represents them. Once a bill is introduced, it is assigned to a committee whose members will research, discuss, and make changes to the bill. The bill is then put before that chamber to be voted on. If the bill passes one body of Congress, it goes to the other body to go through a similar process of research, discussion, changes, and voting. Once both bodies vote to accept a bill, they must work out any differences between the two versions.
Once a bill passes both houses of Congress, it is then presented to the President of the United States for signature. If the President signs it, it becomes law, is given a Public Law number, and is published both on its own as a Slip Law, and in the Statutes at Large. The Statutes at Large also includes additional information, such as the Presidential Signing Statement (if there is one), the number of the bill that was ultimately passed, and information about the Conference Committee Report. Finally, the new law is incorporated into the U.S. Codes.
Codes publish laws of general impact currently in force, arranged by topic with amendments in context. Codes allow the reader to determine the statutory law on a given subject regardless of how many session laws have contributed to the topic. Since the code is constantly being modified by new or amended session law, codes are time-sensitive and subject to change. Because of this, codes are updated regularly. Official codes are published by the government. They are prima facie evidence of the law unless re-enacted as positive law form, which has happened to parts of the US Code.
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Frequently asked questions
Common law, also known as "case law", is uncodified, meaning it is not compiled into rules and statutes. It relies on precedent and past judicial rulings. Statutes, on the other hand, are written laws enacted by a legislative body.
Common law becomes a statute when a judge decides a case and publishes a written decision, which then becomes the precedent for future cases.
No, a statute always overrides common law.
One example of common law is a common-law marriage, which recognises that couples who meet certain conditions have the same rights as married couples.
