Anaya Nolan
The legal systems of most nations in the world are based on a combination of common law and statutory law. Common law, also known as case law, is primarily developed through judicial decisions and is deeply rooted in stare decisis, meaning to stand by things decided. Statutory law, on the other hand, refers to written laws passed by the legislature and government of a country. While statutory law has gained prominence in recent centuries, the question remains: is common law superior to statute law?
| Characteristics | Values |
|---|---|
| Basis | Common law is based on previous rulings by judges. Statutory law is based on written laws passed by the legislature and government of a country. |
| Flexibility | Common law is flexible and evolves as circumstances change. |
| Development | Common law is developed on a daily basis. Statutory law is already written and needs to be applied to specific cases. |
| Applicability | Common law is used in most nations. Bangladesh, Canada, and Ghana are a few examples. |
| Judicial Precedent | Common law is also known as judicial precedent. |
| Superiority | Solicitor General Murray contended that common law is superior to an act of parliament. |
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What You'll Learn
Common law's incremental evolution
Common law, also known as case law, is primarily developed through judicial decisions and precedent rather than statutes. It is deeply rooted in stare decisis, which means "to stand by things decided", where courts follow precedents established by previous rulings. Common law is developed on an everyday basis, evolving incrementally without causing fractionalization of society or expense to the state.
The evolution of common law is contingent on the 'accidents' of litigation, meaning that courts only rule on the law in cases that are brought to them by citizens. Common law is also influenced by the need for certainty, with higher courts ruling over lower courts and earlier cases.
The incremental evolution of common law allows for flexibility and adaptability as circumstances change. For example, in R v R (1992), the House of Lords abolished the 256-year-old rule against a charge of marital rape, demonstrating how common law can evolve to meet changing social and legal needs.
The benefits of common law's incremental evolution were articulated by Lord Mansfield in the case of Omychund v. Barker, where he argued 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 highlights how common law, through its incremental evolution, can address the limitations of statutes and adapt to the specific needs of each case.
Overall, the incremental evolution of common law ensures that the law remains dynamic and responsive to societal changes, allowing for the creation and application of new precedents to address unique circumstances.
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Common law as unwritten law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that is independent of statutes and is derived from judicial decisions and interpretations rather than from written rules or legislation. Common law is often understood as "judge-made law", a term introduced by Jeremy Bentham as a critique of the legal profession's reliance on precedent.
The concept of common law as unwritten law is rooted in the idea of "ancient unwritten universal custom". This view, however, has been challenged by lawyers and judges who recognise that the development and growth of the law involve more complexity than this simple notion suggests. Common law, in its modern understanding, is dynamic and evolving, adapting to situations that may not have been contemplated by the legislature at the time of drafting written laws.
The authority of common law as unwritten law was historically attributed to immemorial usage and universal acceptance throughout a kingdom or society. In the context of the common law system, judges and legal professionals look beyond the written words of a precedent to understand the underlying principles and reasoning behind it. This process of interpreting and applying precedents allows for flexibility and adaptation to changing circumstances, ensuring that the law remains relevant and responsive to societal needs.
Common law, as unwritten law, is developed and applied through a process that involves research and analysis of previous relevant cases, extraction of key statements and judgments, and interpretation of underlying principles. This process enables judges to determine the applicable common law in a given situation, even in the absence of written statutes. The decisions made by higher courts set binding precedents for lower courts, promoting stability and consistency in the legal system.
While common law as unwritten law provides flexibility and adaptability, it can also present challenges due to the lack of explicitly stated rules. This ambiguity allows for varying interpretations and may require extensive research to navigate the complex web of precedents and principles that form the basis of common law.
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Common law and statutory law in Canada
Canada's legal system is a pluralist system with foundations in the English common law system, the French civil law system, and Indigenous law systems developed by the various Indigenous Nations. Common law is a system of rules based on precedent, where judges in later cases are guided by previous rulings. It is flexible and adapts to changing circumstances because judges can announce new legal doctrines or change old ones. Common law prevails everywhere in Canada except in Quebec, which follows a civil code based on the French Code Napoléon (Napoleonic Code).
Statutory laws, on the other hand, are written laws passed by the federal and provincial legislatures and governments of a country and those that have been accepted by society. In Canada, laws enacted at the federal or provincial level are called statutes, legislation, or acts. When a statute is passed, it takes the place of common law or precedents dealing with the same subject. Statutes are necessary to cover areas where common law is not applicable.
Common law and statutory law interact and can create confusion when they offer conflicting conclusions. For example, Ontario's Employment Standards Act, a statute, states that employers owe terminated employees one week per year of service, up to eight weeks. However, under common law, employers must provide "reasonable notice", which often means a minimum of three months and can go up to two years.
Canada's judiciary plays an important role in interpreting laws and ensuring they do not violate the constitution. The Supreme Court of Canada is the highest court and the final arbiter. Lower courts must follow the decisions of higher courts, but they are not bound by the decisions of other judges in their court.
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Common law and statutory law in Bangladesh
Bangladesh is a common law country, with its legal system inherited from the British during their colonial rule over British India. The region now known as Bangladesh was referred to as Bengal during both the British and Mughal periods. The Mughals were the first to recognise and formalise religious and political institutions through state mechanisms.
The Charter of 1726, granted by King George I, authorised the East India Company to establish Mayor's Courts in Madras, Bombay and Calcutta. This is recognised as the first codified law for British India, and by extension, Bengal (modern-day Bangladesh). Since independence in 1971, statutory law enacted by the Parliament of Bangladesh has been the primary form of legislation. Judge-made law continues to be significant in areas such as constitutional law. The Supreme Court of Bangladesh has the power to interpret laws made by parliament, declare them null and void, and enforce fundamental rights of the citizens. The Bangladesh Code includes a compilation of all laws since 1836, most of which are in English, with laws adopted after 1987 in Bengali.
The Bangladeshi legal system is based on a written constitution, with laws often taking statutory form and being enacted and interpreted by the higher courts. Executive authorities and statutory corporations cannot ordinarily make laws, but they can make by-laws to the extent authorised by the legislature. This subordinate legislation is known as rules or regulations and is enforceable by the courts. The statutes are short and set out basic rights and responsibilities, but these are elaborated by the courts in their application and interpretation.
The Supreme Court of Bangladesh has provided vital judicial precedents in areas such as constitutional law, unlawful detention, and torture. The Bangladesh Bar Council is a statutory autonomous body that regulates the activities of the legal profession, including enrolment and professional misconduct. The country's main criminal laws include the Penal Code, 1860, the Code of Criminal Procedure, the Cattle Trespass Act 1871, the Explosive Substances Act 1908, the Prevention of Corruption Act 1947, and the Anti-Corruption Act 1957, among others.
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Common law and statutory law in Ghana
Ghana's legal system is a mix of common law and statutory law, with both contributing to the country's history and future direction.
Common law, also known as case law, is where judges' rulings create new laws or interpret existing ones, filling in the gaps where statutes may be absent. In Ghana, the common law system means that lawyers can practice as both solicitors and barristers, as outlined in the Legal Profession Act, 1960 (Act 32). This Act also allows lawyers to be officers of the court and to sue for their fees. The Ghana Bar Association, while not created by statute, is recognised by the Constitution and is required to serve on various councils, as outlined in Articles 153, 201, 206, and 259.
Statutory laws, on the other hand, are written laws passed by the government and accepted by society. In Ghana, statutory laws are developed by the government and organised into law codes. These laws are published in official gazettes and include legislative instruments, executive instruments, constitutional instruments, and regulatory notices of government bodies. The Statutory Instruments Act, 1959 (Act 52), amended by the Official Publications Act, 1959 (Act 85), and the Interpretation Act, 1960, define a statutory instrument as an instrument made under the power conferred by an enactment. Article 295 of the 1992 Constitution further clarifies that an enactment can be an Act of Parliament, a Decree, a Law, or a constitutional instrument, among others.
While common law is developed over time through judicial rulings, statutory laws are already written and simply applied to specific cases. In Ghana, the interplay between these two legal systems has resulted in some difficulty in determining whether a statute or a particular section of a statute is in force. The Review of Ghana Law attempts to address this issue through its "Statutory Intelligence" section, which notes repealed or amended statutes and subsidiary legislation. Additionally, the publication "Legislative Watch" by Sozo Law Consult provides a digest of laws passed annually, including new, amended, and revoked laws.
In conclusion, Ghana's legal system operates through a combination of common law, which allows for judicial interpretation and flexibility, and statutory law, which provides written codes developed by the government. Both systems are necessary for serving justice and contributing to the country's legal framework.
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Frequently asked questions
Common law is the body of law derived from judicial decisions, rather than from statutes or constitutions. It is deeply rooted in stare decisis, which means that courts follow precedents established by previous decisions.
Statute law refers to written laws passed by the legislature and government of a country and accepted by society. Statute law is also known as legislation.
Common law is developed through judicial decisions and is based on precedent, whereas statute law is developed by the government and is written down in the form of legislation. Common law is more flexible than statute law as it can be developed on a daily basis, whereas statute law is more rigid as it is already written and simply needs to be applied to specific cases.
This is a matter of debate. It has been argued that common law is superior to statute law because it is more flexible and can take into account the changing circumstances and needs of society. However, others argue that statute law is necessary to serve justice and that common law cannot take in all cases.
