Cecily Zamora
Common law and legislative decisions are not the same thing. Common 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 in Latin. This means that courts follow precedents established by previous decisions. On the other hand, legislative decisions, also known as statute law, refer to laws written by legislative bodies such as Parliament. While common law is generally uncodified, legislative decisions are part of a comprehensive, codified set of legal statutes created by legislators.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of unwritten laws based on legal precedents established by the courts. |
| Legislative decisions are laws made by parliaments, also known as statute law, statutes, or Acts of Parliament. | |
| Basis | Common law is based on stare decisis, which means "to stand by things decided". |
| Legislative decisions are based on the creation of new statutes or the interpretation of existing ones. | |
| Flexibility | Common law is flexible and can respond to changes in society. |
| Legislative decisions may be more difficult to change once passed. | |
| Precedent | Common law relies on judicial precedents, where courts follow past decisions in similar cases. |
| Legislative decisions may be based on statutes that provide clear rules for judges to follow. | |
| Jurisdiction | Common law decisions are binding within a specific jurisdiction and may vary across regions. |
| Legislative decisions may have a wider reach depending on the legislative body and can be more uniform. | |
| Sources | Common law draws from institutionalized opinions, interpretations, and precedents from judicial authorities and public juries. |
| Legislative decisions are made by legislative bodies such as Parliament or Congress. | |
| Enactment | Common law evolves gradually and may take time to establish new precedents. |
| Legislative decisions are enacted through a formal process involving debates, voting, and approvals. |
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What You'll Learn
- Common law is a body of unwritten laws based on legal precedents
- Legislative decisions are made by lawmakers and are written laws
- Common law is more flexible and can adapt to new trends
- Common law is deeply rooted in stare decisis, meaning to stand by things decided
- Common law and civil law are the two main legal systems used today
Common law is a body of unwritten laws based on legal precedents
Common law is generally uncodified, meaning there is no comprehensive compilation of legal rules and statutes. Instead, it relies on scattered statutes and, more prominently, on judicial decisions made in similar past cases. These precedents are maintained through court records and historically documented in collections of case law, known as yearbooks and reports. The decisions of higher courts are typically binding on lower courts within the same jurisdiction.
The flexibility of common law allows it to respond to societal changes and adapt to new trends in political, legal, and social philosophy. Common law courts can reinterpret and revise laws without legislative intervention, contributing to its dynamic nature. This flexibility also enables common law systems to address situations not originally predicted or addressed by lawmakers, as they are not bound to follow only what is written in statutes.
In contrast, legislative decisions, also known as statute law or Acts of Parliament, involve a lengthy process that includes committee systems, debates, voting, and approval. While legislative decisions carry authority and can override common law in the event of a conflict, they are less responsive to societal changes and trends compared to common law.
Common law is practiced in several countries, including the United States, Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. It has influenced and inspired new legislation, such as the Voyeurism (Offences) Act in the UK, which addressed the modern issue of "upskirting". However, common law has also been criticised for perpetuating biases and marginalising certain groups, as seen in historical examples of gender discrimination.
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Legislative decisions are made by lawmakers and are written laws
Common 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". In other words, courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. Common law is more malleable than statutory law. Common law courts can reinterpret and revise the law without legislative intervention.
Legislative decisions, on the other hand, are made by lawmakers and are written laws. Also known as statute law, statutes, or Acts of Parliament, legislation is a well-established principle inherited from British constitutional law that parliament is sovereign or all-powerful. This means that, in theory, parliament can make any law it wants, even if it goes against what most people would consider their basic rights. The fact that lawmakers must face election acts as a check on this power.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then, one must extract the principles, analogies, and statements by various courts to determine how the next court is likely to rule on the facts of the present case. Finally, one integrates all the lines drawn and reasons given and determines "what the law is". Then, one applies that law to the facts.
In contrast to common law incrementalism, the legislative process is difficult to get started. Once legislation is introduced, the process of getting it passed is long, involving the committee system, debate, the potential of a conference committee, voting, and presidential approval. Because of the involved process, many pieces must fall into place for it to be passed.
While common law and legislative decisions are different, they do interact. For example, common law can furnish the basis for new legislation to be written. In the case of conflict between legislation and common law, legislation will override common law. However, that conflict must be clear. There is a presumption that rights under common law continue unless the legislation clearly does away with them.
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Common law is more flexible and can adapt to new trends
Common law is a body of unwritten laws based on legal precedents established by the courts. It is generally uncodified, with no comprehensive compilation of legal rules and statutes. While common law does incorporate some scattered statutes, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases.
Common law is also flexible because it can respond to changes in society. In contrast to the legislative process, which can be lengthy and difficult to initiate, common law systems allow higher courts to overrule prior decisions as "bad law" without waiting for lawmakers to act. This flexibility can be seen in the development of conspiracy law in the 19th century to address contemporary problems of fraud. Additionally, common law can inspire new legislation. For example, the ancient common-law offence of "outraging public decency" was recently used to prosecute a new intrusive activity called "upskirting". This activity was later specifically criminalized through the Voyeurism (Offences) Act in the UK.
However, it is important to note that common law has been criticized for its potential bias and marginalization of certain groups due to outdated precedents. For instance, in England, common law held that fathers were entitled to custody of children during divorce proceedings, effectively trapping women in marriages.
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Common law is deeply rooted in stare decisis, meaning to stand by things decided
Common law is a body of unwritten laws based on legal precedents established by the courts. It is generally uncodified, meaning there is no comprehensive compilation of legal rules and statutes. Common law is deeply rooted in stare decisis, a Latin term meaning "to stand by things decided", where courts adhere to precedent in making their decisions. This means that when a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision. This fosters stability, consistency, and predictability in the legal system, as it provides a framework for judges to follow when faced with similar legal issues.
Stare decisis, or the doctrine of precedent, is a fundamental principle in common law jurisdictions. It requires judges to follow existing precedents and prevents arbitrary decision-making. This doctrine also lessens the need for subsequent litigation, saving time and resources by preventing the same legal issue from being litigated repeatedly. The principle of stare decisis is deeply entrenched in the American legal system, where it is considered a self-governing principle within the judicial branch.
While stare decisis is a crucial aspect of common law, it is important to note that it is not an "inexorable command". In other words, courts are not absolutely bound by precedent and can reinterpret and revise the law when there is a good reason to do so. This flexibility allows common law to adapt to changing trends and societal developments, ensuring that outdated or biased precedents can be overturned. For example, in the United States, the Supreme Court has, on occasion, explicitly renounced previous decisions, such as in Brown v. Board of Education, where the Court refused to apply the doctrine of stare decisis and instead recognised that racially segregated schools violated the Constitution.
In contrast to common law, the legislative process for creating new laws can be lengthy and complex. It involves multiple stages, including introducing a bill, committee deliberations, debates, voting, and approval. This process can make it challenging to address all possible scenarios and situations that may arise in practice. Common law, with its reliance on stare decisis, provides a flexible framework for addressing novel issues and situations not originally predicted or addressed by existing statutes.
In summary, common law is deeply rooted in stare decisis, the principle of adhering to precedent in decision-making. This doctrine promotes stability, consistency, and predictability in the law while allowing for flexibility and adaptation to changing societal needs. The interplay between stare decisis and the evolution of common law showcases the dynamic nature of the legal system, ensuring that the law remains responsive to the needs and values of the society it serves.
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Common law and civil law are the two main legal systems used today
Common law and civil law are the two primary legal systems in use today. Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in England during the Middle Ages and spread to North America during the colonial period. Today, the US, Canada, India, Australia, Hong Kong, New Zealand, and the UK use common law to resolve legal disputes.
Common law is generally uncodified, meaning there is no comprehensive compilation of legal rules and statutes. Instead, it relies on scattered statutes and, more importantly, on precedent—the judicial decisions that have already been made in similar cases. The presiding judge determines which precedents apply to a particular case, and these precedents are maintained over time through the records of the courts. Common law is flexible, as it can respond to changes in society without requiring lawmakers to pass changes in statutes and codes. It promotes stability and consistency in the legal system, as outcomes are based on previous caselaw rather than subjective viewpoints.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It originated in mainland Europe and provides a clear framework of rules for judges to follow in specific disputes. Civil law systems define the cases that can be brought to court, the procedures for handling claims, and the punishments for offenses. Judicial authorities use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions. While civil law is regularly updated, the goal of standardized codes is to create order and reduce bias in the system.
The main difference between common law and civil law systems is that common law systems rely on caselaw and legal precedent to guide their decisions, while civil law systems depend primarily on codes and statutes. In common law systems, court decisions are binding in similar future cases, whereas civil law systems do not consider a judge's decision when interpreting the text of the code in later cases involving different parties.
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Frequently asked questions
Common 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" in Latin.
A legislative decision, or legislation, is a law made by a legislative body such as a parliament. It is also known as statute law or Acts of Parliament.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. This involves ascertaining the facts, locating relevant statutes and cases, and extracting the principles, analogies, and statements by various courts.
Common law is more flexible than legislative decisions as it can respond to changes in society. It is also based on precedent, meaning it relies on previous judicial decisions made in similar cases. Legislative decisions, on the other hand, are written laws created by legislative bodies.
Yes, they can. In some cases, common law may furnish the basis for new legislation to be written. Additionally, in common law systems, courts can interpret and apply legislation, and their interpretations become precedents that are binding in future cases involving the same statute.
