Kara Sears
There are two main types of law within the legal system: common law and statute law. Statute law is made by parliament and encompasses compiled legislation passed at a local, state, or federal level. It is also referred to as civil law and is subject to strict application. Common law, on the other hand, is made by judges in courts and is uncodified, meaning it is not compiled into rules and statutes. Instead, it relies on precedent, where historical rulings set the standard for future cases. While both types of law are essential components of the legal system, understanding their differences can help citizens better understand their rights.
| Characteristics | Values |
|---|---|
| Creation | Statute law is made by parliament, whereas common law is made by judges in courts. |
| Nature | Statute law is codified, encompassing compiled legislation passed at local, state, or federal levels. Common law, on the other hand, is uncodified and relies on precedent from past rulings. |
| Interpretation | Statutory law is strict in its application and is not subject to interpretation. Common law, however, allows for interpretation. |
| Flexibility | Statutory laws are subject to being overturned or changed if deemed unconstitutional, or they may expire. Common law, being based on precedent, is more flexible and can adapt to new circumstances. |
| Overruling | Statute law takes precedence and can override common law. |
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What You'll Learn
Statute law is made by parliament
Statute law, also known as civil law, is made by parliament. It is a codified set of laws, encompassing compiled legislation that has been passed on a local, state, or federal level. Statute law is strict in its application and is not subject to interpretation, meaning it is applied as written. However, statutes can be overturned or changed if a later legislative body finds them unconstitutional or outdated. This allows for flexibility to ensure the law remains relevant and reasonable to those it protects and regulates.
In Australia, for example, statute law is made when Parliament agrees to a bill proposing a new law or a change to an existing one. This process involves several stages, including readings and votes in both the House of Representatives and the Senate, before the bill is given Royal Assent by the Governor-General and becomes an Act of Parliament.
The process of creating statute law ensures that proposed laws are thoroughly discussed, debated, and voted on by representatives and senators before receiving assent, demonstrating the role of parliament in shaping the legal framework. Statute law is distinct from delegated law, which is made by the Executive government and can be overruled by parliament if disagreed upon.
While statute law is made by parliament, common law, in contrast, is made by judges in courts. Common law, also known as case law or judge-made law, relies on precedent set by previous judicial rulings in similar cases. When no statute law applies to a specific situation, common law is applied. However, statute law always takes precedence and can overrule common law. Understanding the distinction between statute law and common law is crucial for comprehending the legal system and individual rights within it.
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Delegated law is made by the executive government
Statute law and common law are two distinct types of laws. Statute law is made by parliament, whereas common law is made by judges in courts. Statute law is created when parliament agrees to a bill—a proposal for a new law or a change to an existing one. It is made through a democratic process, with the bill undergoing several readings, discussions, and votes before it is passed into law. Common law, on the other hand, is developed through judicial decisions and precedents. Judges use past decisions in similar cases to guide their rulings, establishing a body of law based on previous judgments.
Now, delegated law, also known as delegated legislation, is a form of law that is made by the executive government. It is distinct from statute law and common law in terms of its creation and characteristics. Delegated law is made by the executive branch of the government, which typically consists of the Prime Minister and other ministers. This branch of government is tasked with executing and enforcing the laws enacted by parliament.
One of the key features of delegated law is that it can be created and modified without undergoing the same parliamentary processes as statute law. It does not require debates or votes in parliament for its formation or amendment, allowing for a more streamlined and swift law-making process. However, it should be noted that delegated law possesses the same legal weight as statute law. Parliamentary committees play a role in reviewing delegated law, and parliament retains the power to overrule or veto it if deemed necessary.
The process of creating delegated law involves the executive branch exercising the authority delegated to it by parliament. This delegation of power enables the executive to formulate specific rules, regulations, and by-laws that fall within the scope of the delegated authority. These delegated laws are often created to supplement or provide detailed regulations for the implementation of statute laws. They can cover a range of areas, including decisions, declarations, determinations, directions, and orders.
In some cases, delegated law can involve the revival, suspension, or modification of previously enacted statutes based on certain triggering conditions. For example, in the case mentioned, "The Brig Aurora", a law was revived upon the issuance of a presidential proclamation. This showcases the flexibility of delegated law in addressing specific situations or circumstances.
In summary, delegated law is a form of law made by the executive government, and it plays a crucial role in complementing and expediting the law-making process. While it holds the same legal authority as statute law, it is subject to parliamentary oversight and can be overruled by parliament if necessary.
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Common law is made in courts by judges
Common law, also referred to as case law or judge-made law, is made by judges in courts. It is uncodified, meaning it is not compiled into rules and statutes. Instead, it relies on precedent, where the rulings of past federal, state, or local court cases set a precedent for future cases. When judging a case, a judge will use past rulings in similar cases to inform their decision. If no past cases with similar circumstances exist, a judge will make a new decision, which then becomes a precedent for similar cases moving forward. If no statute law applies to a particular situation, common law is applied. However, it's important to note that statute law takes precedence over common law.
Common law and statute law are the two primary types of law within the legal system, and both play a crucial role in establishing standards of acceptable behaviour and justice for citizens and their governments. However, it is essential to understand their differences. Unlike common law, statute law, also known as civil law, is codified, encompassing compiled legislation passed at the local, state, or federal levels. Statute law is strict in its application and is not subject to interpretation, meaning it is interpreted literally. Nevertheless, statutes can be overturned or changed if a later legislative body deems them unconstitutional or if they are not renewed after their expiration date.
The process of creating statute law involves the proposal of a bill, which is a suggestion for a new law or a modification to an existing one. In Australia, for example, a bill must pass through the House of Representatives and the Senate and receive Royal Assent from the Governor-General to become an Act of Parliament or statute law. This process highlights the role of parliament in creating statute law, which contrasts with the judicial role in developing common law.
While parliament has the authority to overrule delegated law and create statutes that supersede common law, it is important to recognise that common law is not static. It evolves through the decisions and precedents set by judges in courts. This dynamic nature of common law allows for flexibility and adaptability in the legal system, ensuring that laws remain relevant and reasonable to the people they serve. By understanding the distinction between common law and statute law, individuals can better grasp their rights and the complex interplay between these two essential components of the legal system.
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Common law relies on precedent
Common law and statutory law are the two main types of law within the legal system, and both are essential components of the legal system. Common law, also known as case law or judge-made law, is made in courts by judges. When judging a case, judges use past rulings on similar cases to guide their decisions. This is called relying on precedent. If no past cases with similar circumstances exist, a judge will make a new decision, which then becomes a precedent for similar cases in the future. For example, in Australia, common law is inherited from Britain, and it applies if no statute law covers a particular situation. However, statute law, which is made by parliament, always overrides common law.
Statutory law, also known as civil law, is compiled legislation passed on a local, state, or federal level. Unlike common law, it is subject to strict application and is not open to interpretation. In other words, a statute means exactly what it says. However, statutes are subject to being overturned or changed if a later legislative body finds them unconstitutional. Some statutes may even be designed to expire every few years. This allows the law to remain relevant and reasonable to those it protects and regulates.
Common law, on the other hand, is uncodified, meaning it is not compiled into rules and statutes. Instead, it relies on the historical rulings of past federal, state, or local court cases to set the precedent for future cases. Sometimes, judgments that establish a new precedent turn into a new law. For instance, in Australia, delegated law is made by the Executive government or government officials. It has the same legal effect as statute law but can be made or changed quickly without being debated and passed by parliament. However, parliamentary committees can review delegated law, and parliament can vote to overrule it if it disagrees.
In summary, common law is a system of law that relies on precedent, where past rulings are used to guide future decisions. It is flexible and adaptable, allowing for the evolution of legal interpretations over time. While statutory law is essential for providing a foundation of codified rules, common law fills in the gaps and ensures that the law remains relevant and reasonable to those it serves.
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Statute law always overrides common law
Statute law, also known as civil law, is made by parliament. It is codified and encompasses compiled legislation that has been passed on a local, state, or federal level. Statute law is strict in its application and is not subject to interpretation. It is made when parliament agrees to a bill proposing a new law or a change to an existing one. In Australia, for example, a bill becomes a law after it has been passed by a majority vote by the House of Representatives and the Senate and is given Royal Assent by the Governor-General.
Common law, on the other hand, is made by judges in courts. It is uncodified, meaning it is not compiled into rules and statutes. Instead, it relies on precedent, where historical judicial rulings set the standard for future cases. If no past cases with similar circumstances exist, a new decision is made, which then becomes a precedent. Common law is applied when no statute law covers a particular situation.
Given their different origins and applications, it is important to understand the distinction between common law and statute law to better understand one's rights. While both are essential components of the legal system, statute law takes precedence over common law. This means that if a conflict arises between a statute and a common law principle, the statute will prevail.
For example, in Australia, parliament has the power to overrule common law by creating statutes that supersede it. This reflects the hierarchical relationship between these two types of law, where statute law is considered primary. As such, in the event of any inconsistency or conflict between statute law and common law, the statute will always override the common law principle.
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