Keith Mack
Common law crimes are acts that are considered offences under common law, rather than statutory law. Common law is derived from past judicial decisions and interpretations, and is used as a basis for statutory law. Common law crimes are recognised differently across various jurisdictions. For example, in the United States, common law crimes have been deemed unconstitutional by the federal government, but some states continue to recognise them. In some cases, common law is used to interpret and prosecute crimes that are not explicitly defined in statutory criminal codes. Common law crimes can include acts such as contempt of court, defamatory libel, and obstruction of justice.
| Characteristics | Values |
|---|---|
| Definition | Crimes punishable under common law rather than statutory law |
| Examples | Contempt of court, defamatory libel, murder, assisted suicide, outraging public decency |
| Actus Reus Elements | Elements that describe conduct |
| Mens Rea Elements | Elements that identify a particular mental state |
| Self-Defence | Use of non-deadly force to defend against a non-deadly attack is allowed under certain circumstances |
| Homicide | The unlawful killing of another human being |
| Murder | Homicide with malice aforethought, driven by an "endangering state of mind" |
| Manslaughter | A type of homicide that is not murder |
| Jurisdiction | Varies across states and countries, with some abolishing common law crimes |
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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. Both set a standard of acceptable behaviour and justice for citizens and their governments. However, they differ in terms of their origins and applications.
Common law, also known as case law, is uncodified and relies on past judicial opinions and precedent. It is not compiled into rules and statutes but is developed through the rulings of courts. In other words, common law is made by judges in a court, using past decisions in similar cases to decide how they will judge a new case. Common law is also referred to as "unwritten law" because it is not collected in a single source. For instance, in some states, assisted suicide is not specifically prohibited by statute. In those states, the prosecution would have to rely on common law to obtain a conviction.
Statutory law, on the other hand, is codified and based on current statutes or written laws. It encompasses compiled legislation that has been passed on a local, state, or federal level. Statutory law is also known as civil law and is strict in its application. It is not subject to the same interpretation as common law and can be located and read in a law library or online. For example, traffic laws like driving on a suspended license and drug laws are statutory laws.
While common law comes first, before any case, and the cases then interpret what the common law is, it is important to note that statute law always overrides common law. In some states, the elements of many crimes are defined mostly or entirely by common law. For example, in Michigan, the penalties for murder are laid out in statute, but the actual elements of murder are set out in case law.
In summary, common law and statutory law serve complementary roles in the legal system, with common law providing flexibility and adaptability, while statutory law offers clarity and consistency.
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Common law defences
In a civil or criminal case under common law, a defendant may raise a defence to avert civil liability or criminal conviction. A defence can be based on legal grounds or factual claims. The defendant may contest the accuracy of an allegation or make allegations against the prosecutor or plaintiff.
Some common defences in common law include:
- Lack of personal or subject matter jurisdiction of the court, such as diplomatic immunity.
- Failure to state a cause of action or other insufficiencies of pleading.
- Affirmative defences.
- Defences conferred by statute, such as a statute of limitations or the statute of frauds.
- Ex turpi causa non oritur actio – the action against the defendant arises from an illegality.
- Volenti non fit injuria – consent by the victim or plaintiff.
- In pari delicto – both sides equally at fault.
- Act of God – an unforeseeable natural phenomenon that involves no human agency.
- Necessity – harm done to prevent a greater evil.
- Justification – a justifiable act is one that makes out the offence but is justified by the external circumstances in which the act was committed (e.g. self-defence).
- Excuse – a criminal act is excused where the accused would have committed an undesirable criminal offence, and the punishment for the offence would be morally inappropriate due to extenuating circumstances (e.g. offences due to mental infirmities, duress).
- Contributory negligence – the plaintiff is partially responsible for their injuries, for example, by not wearing a seatbelt.
- Illegality – the plaintiff and defendant were engaged in a joint criminal enterprise when the injury occurred.
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Common law in federal courts
Federal common law is a term used to describe common law developed by federal courts in the United States, rather than by the courts of individual states. In the 1842 case of Swift v. Tyson, the U.S. Supreme Court held that federal courts hearing cases under their diversity jurisdiction must apply the statutory law of the states but not the common law developed by state courts. However, in Erie Railroad v. Tompkins (1938), the Supreme Court overruled this decision, stating that federal courts exercising diversity jurisdiction must apply the same substantive laws as the courts of the states in which they are located.
Despite this, there are still areas where federal common law is applied. These can be divided into two categories: areas where Congress has granted the courts the power to develop substantive law, and areas where a federal rule of decision is necessary to protect uniquely federal interests. Examples include admiralty law, antitrust, bankruptcy law, interstate commerce, and civil rights.
In the 1943 case of Clearfield Trust Co. v. United States, the Court affirmed that federal courts could create federal common law in limited circumstances where federal or Constitutional interests are at stake, Congress has not adequately addressed the situation, and the application of individual state laws would result in unacceptable diversity or uncertainty. When creating new federal common law, the Court may adopt state law, follow its own precedent, or establish new law.
It is important to note that federal common law does not encompass the creation of new common law crimes by federal courts. In United States v. Hudson (1812), the Supreme Court ruled that federal courts lack jurisdiction to define new common law crimes. Instead, federal crimes must be based on constitutionally valid statutes that outline the offense, jurisdiction, and penalties. While there is no explicit prohibition on state courts from defining common law offenses, most states have abolished common law crimes, and they have become rare.
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Common law in specific states
Common law crimes are those that are punishable under common law, rather than statutory law. In the United States, the federal system and individual states and territories, with the partial exception of Louisiana and Puerto Rico, have common law.
The US Supreme Court has deemed common law offences unenforceable in federal courts, but at the state level, the situation varies. Some states, like New Jersey, have abolished common law crimes, while others continue to recognize them. For example, in Michigan, the penal code does not define the crime of murder, but the penalties are outlined in statute, with the elements of murder set out in case law.
Common law marriage is recognized in Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition of common law marriage.
In terms of specific state laws, Delaware, Illinois, Mississippi, South Carolina, and Tennessee have divided courts of law and chancery. In New Jersey, the appellate courts are unified, but the trial courts are divided into a Chancery Division and a Law Division.
Common law is generally understood as law independent of statutes, or "judge-made law", as Jeremy Bentham called it. At the center of common law is the principle of stare decisis, which means that courts and judges must follow previous decisions and rulings, or case law, when dealing with similar cases. This is a key difference from civil law systems, where a judge's decision is not binding in future cases involving different parties.
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Common law in other countries
Common law is one of the four major legal traditions (alongside civil law, customary law, and religious law) that form the basis of contemporary national legal systems. Common law, also known as case law or precedent, refers to law developed by judges through decisions of courts and similar tribunals, stated in reported opinions. Common law is primarily found in countries with legal systems derived from the British Empire, such as the United States, Australia, New Zealand, and Canada.
In common-law countries, a single national supreme court has general jurisdiction over a wide range of cases in virtually all areas of the law arising in lower courts. These courts are recognised as law-making bodies through their development of case law. Common law crimes are those that are punishable under the common law, rather than by statutory law. For example, in some US states, assisted suicide is not specifically prohibited by statute. In those states, the prosecution would have to rely on common law to obtain a conviction.
The recognition of common law varies across countries and states. For instance, in the US, the ability to enforce common law offences in federal courts was deemed unconstitutional by the US Supreme Court in 1812. However, at the state level, some states have abolished common law crimes, while others continue to recognise them. Similarly, in New Zealand, the ability to be proceeded against at common law for being a party to a criminal offence was abolished by the Criminal Code Act of 1893.
Civil law, the other most widespread legal system in the world, is interpreted rather than developed or made by judges. Civil law is subdivided into groups, including French civil law (France, Benelux countries, Italy, Romania, Spain, etc.), German civil law (Germany, Austria, Russia, Switzerland, etc.), and Scandinavian civil law (Northern European countries). Most civil law countries do not have a unified legal profession and recognise multiple legal occupations, such as judge, prosecutor, civil servant, and private practitioner.
Islamic Sharia law, consisting of Sharia (Islamic law) and fiqh (Islamic jurisprudence), is the most widely used religious law system and is considered similar to common law as it is based on legal precedent and reasoning by analogy.
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Frequently asked questions
A common law crime is a crime that is punishable under the common law, rather than by statutory law.
Some examples of common law crimes include contempt of court, defamatory libel, and obstruction of justice. In a more recent case, a defendant who filmed and mocked dying police officers was charged with the archaic common law offence of outraging public decency.
The recognition of common law crimes varies depending on the jurisdiction. Some common law jurisdictions, like the United States federal government, have codified their criminal laws to the point that common law crimes are no longer recognized. However, in other jurisdictions, common law crimes may still be enforced.
Common law continues to influence criminal law, even in jurisdictions where common law crimes are no longer recognized. Criminal statutes are often codifications of common law, and judges may refer to common law when interpreting and applying these statutes. Additionally, common law can provide defences to criminal charges, such as self-defence.
