Anaya Nolan
Legislation and common law are two distinct legal concepts. Legislation is the process of preparing and enacting laws by a legislative body through its lawmaking process, which includes evaluating, amending, and voting on proposed laws. On the other hand, common law is a legal system that relies on judicial decisions and precedent to guide future rulings. It is based on the principle of stare decisis, which means that courts and judges follow previous rulings when dealing with similar cases. Common law is more flexible than legislation as it can adapt to changes in society and address unforeseen situations. It is also more efficient as judges only need to follow precedent, leading to shorter court proceedings. However, the legislative process is more structured and involves multiple stages, including committee reviews, debates, and voting, to ensure the careful consideration of proposed laws.
| Characteristics | Values |
|---|---|
| Definition | Legislation is law made by parliaments. It is also known as statute law, statutes, or Acts of Parliament. |
| Common law is uncodified and relies on precedent. It is derived from ancient customs and traditions that were gradually recognized and enforced by the courts. | |
| Jurisdiction | Legislation is made by the Commonwealth parliament, the State parliaments, and by the legislatures of the Northern Territory, the Australian Capital Territory, and Norfolk Island. |
| Common law is a part of the English legal system, which is divided into three jurisdictions: England and Wales, Scotland, and Northern Ireland. | |
| Flexibility | Legislation is more rigid and provides standardized rules. |
| Common law is more flexible and allows for adaptation to societal changes. | |
| Interpretation | Legislation is strict in its application and is not subject to interpretation. |
| Common law is subject to interpretation by judges, who consider the unique circumstances of each case. | |
| Precedent | Legislation overrides common law in case of conflict. |
| Common law relies on precedent, or the doctrine of stare decisis, where previous decisions guide future judgments. |
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What You'll Learn
Common law's flexibility and adaptability
Legislation, also known as statute law, is law made by parliaments. Common law, on the other hand, is a "body of law" based on court decisions and precedents rather than codes or statutes. It is uncodified, meaning that it is not compiled into rules and statutes. Common law is adaptable and flexible in ways that legislation is not.
Common law is adaptable to the unforeseen. When lawmakers create statutes and rules, they cannot predict all the situations in which courts may need to apply the laws. In common law systems, courts can address situations not originally predicted by lawmakers. For example, much of the law of fraud, both civil and criminal, is the product of legal evolution. Conspiracy, for instance, was invented by courts during the nineteenth century to deal with perceived contemporary problems.
Common law is also flexible in that it can respond to changes in society. In common law systems, higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to act. This flexibility can encourage good judgment. For example, in R (Soma Oil and Gas Ltd) v Director of the SFO [2016] EWHC 2471, the judge perceived that the issues before him could not be justly dealt with by applying existing rules. He considered the economic consequences of putting legal principle before pragmatism and ruled in a way that balanced settled rules with the need for legal certainty.
In addition, common law is flexible in that it is not subject to the same interpretation as civil law. While civil law systems have clear rules for how judges need to rule in specific disputes, common law relies on precedent and allows for interpretation. This flexibility means that common law can remain relevant and reasonable to the people the law protects and regulates.
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Statutory law's rigidity and standardisation
Legislation, also known as statutory or statute law, is law made by parliaments. In Australia, for example, legislation is made by the Commonwealth parliament, the State parliaments, and by the legislatures of the Northern Territory, the Australian Capital Territory and Norfolk Island. Local governments may also be empowered by parliaments to make legislation. In the UK, the three main jurisdictions of England and Wales, Scotland, and Northern Ireland each have their own laws, court systems, lawyers, and judges.
Statutory law is codified and encompasses compiled legislation that has been passed on a local, state, or federal level. It is also known as civil law and is strict in its application, meaning it is not subject to interpretation. Statutes are subject to being overturned or changed if a later legislative body finds them unconstitutional, and they may even be designed to expire every few years. This allows for flexibility in the legal system, ensuring that laws remain relevant and reasonable.
However, statutory law tends to be more rigid than common law. It provides standardized rules applicable to all, offering clarity and predictability. Amending statutory provisions requires a formal legislative process. This rigidity ensures stability and the uniform application of laws.
The interplay between precedent and legislation maintains a dynamic legal system. Precedent guides decisions while legislation supplements or modifies common law principles. This balance between flexibility and rigidity is vital for an effective legal system, facilitating the development and application of legal principles while maintaining stability.
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Common law's reliance on precedent
Common law, also known as judicial precedent, is a body of law primarily developed through judicial decisions rather than statutes. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". This means that common law relies heavily on precedent, where courts follow the precedents established by previous judicial rulings in similar cases. The presiding judge determines which precedents to apply when deciding on new cases.
The reliance on judicial precedent is a strength of common law systems, providing reasonably precise guidance on almost every issue. This allows parties, especially commercial parties, to predict whether a proposed course of action is likely to be lawful and provides consistency. This predictability allows parties to operate with greater freedom, knowing the boundaries of the law. For example, commercial contracts can be more economically efficient and create greater wealth because parties can structure their agreements with confidence, knowing the legal parameters within which they can operate.
While common law is primarily based on precedent, it is not rigidly bound to past rulings. Judges are empowered to resolve issues and establish new precedents in "cases of first impression" where no clear precedent or legislative guidance exists. The degree to which external factors such as economics, social sciences, foreign court decisions, and policy considerations should influence adjudication is a subject of active debate. However, it is acknowledged that judges do draw on their experiences and learning from everyday life, other fields, and other jurisdictions when making their decisions.
In summary, common law's reliance on precedent provides stability, predictability, and consistency to legal systems, contributing to the robustness of commercial systems in jurisdictions that adopt this approach. However, the interpretation and application of precedent can evolve over time, allowing for flexibility and adaptation to changing circumstances.
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Statutory law's creation through legislation
Legislation, also referred to as statutory law, is law made by parliaments. It is also known as statute law, statutes, or Acts of Parliament. In Australia, for example, legislation is made by the Commonwealth parliament, the State parliaments, and by the legislatures of the Northern Territory, the Australian Capital Territory, and Norfolk Island. Local governments and other bodies may also be given certain powers by parliaments to make legislation.
Statutory law is codified and encompasses compiled legislation passed at the local, state, or federal level. It is also known as civil law and is strict in its application, meaning it is not subject to interpretation like common law. Statutes are subject to being overturned or changed if a later legislative body finds them unconstitutional, and they may even be designed to expire every few years. This allows for the law to remain relevant and reasonable to those it protects and regulates.
Statutory laws are created through legislation by parliament. They address specific societal concerns, fill gaps in common law, and provide explicit rules that apply to all. Precedent allows for flexibility and adaptability, empowering judges to apply established legal principles to new situations. It shapes legal interpretations and sets binding decisions for lower courts.
Statutory law provides a clear legislative intent, offering precise rules and regulations that address contemporary issues and create a standardized legal framework. It provides a more standardized and codified set of rules, offering clarity and predictability. Amending statutory provisions requires a formal legislative process.
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Parliamentary sovereignty and common law
Legislation, also referred to as statute law, statutes, or Acts of Parliament, is law made by parliaments. Parliamentary sovereignty, a concept that originated in the United Kingdom and has since been adopted by other countries, asserts that parliament is free to enact legislation in any area of law it chooses. This means that parliament can make or unmake any law, and no person or body is recognised as having the authority to override or set aside its legislation.
In practice, this means that legislation takes precedence over common law. Common law, also known as case law, is uncodified, relying on precedent set by past court cases rather than being compiled into rules and statutes. While common law rights are presumed to continue unless explicitly removed by legislation, the latter can override common law if there is a clear conflict between the two.
The principle of parliamentary sovereignty is not without controversy or limitations. In Australia, for example, parliamentary sovereignty is constrained by the federal and state constitutions, which limit the Commonwealth Parliament's law-making power to specific subjects and prescribe the process for altering the constitution. Similarly, in New Zealand, while parliament exercises sovereignty, certain matters, such as the maximum term of parliament and some electoral system issues, can only be altered through a parliamentary supermajority or a majority referendum.
The concept of parliamentary sovereignty has also faced challenges over time. For instance, the Parliament Act 1911 changed the nature of what was meant by "parliament", and some scholars have argued that the ideas of parliamentary sovereignty and supremacy are "inaccurate, inadequate, or unnecessary" in certain contexts. Despite these challenges and limitations, parliamentary sovereignty remains a central feature of many countries' political and legal systems, shaping the dynamics between the legislature, judiciary, and other political elements.
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Frequently asked questions
Legislation is the process of preparing and enacting laws by a legislative body through its lawmaking process. This involves evaluating, amending, and voting on proposed laws, with the input of legislators with experience in a particular field.
Common law is a body of law based on court decisions, or judicial precedent, rather than codes or statutes. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". In other words, common law systems rely on past rulings and decisions to guide their verdicts.
Legislation is the process of creating laws, whereas common law is a type of legal system that is based on past court decisions, also known as judicial precedent.
Common law promotes stability and consistency as it is based on past rulings and not on subjective, personal viewpoints. It is also efficient as judges only need to follow precedent when making decisions, saving time and money. Common law is also adaptable and flexible, as it can respond to changes in society and higher courts can overrule past decisions.
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