Gavin Howe
Common law and statutory law are two distinct legal systems that form the basis of the laws governing most nations in the world. Common law, also known as judge-made law or case law, is unwritten and based on precedent, meaning it relies on previous rulings by judges in similar cases. It is interpretive and evolves through court decisions, allowing judges to respond to societal changes. In contrast, statutory law, also called civil law, is written and codified, enacted by legislative bodies such as Parliament. It is more rigid in its application, with judges applying the law as written. While statutory law takes precedence over common law, both systems interact and are essential for ensuring justice.
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What You'll Learn
Common law is unwritten and based on precedent
Common law, also known as "case law" or "judge-made law", is unwritten and based on precedent. It is a system of law that has been developed on the basis of preceding rulings by judges in similar cases. In other words, common law is based on the principle of "stare decisis et non quieta movere", which means "to stand by decisions and not disturb the undisturbed". This means that judges' rulings in previous cases are used as a basis for deciding current cases. Common law is interpretive and evolves through court decisions, with judges interpreting existing laws and determining new boundaries and distinctions. It is not written out in statutes or books but is accessible by reviewing judicial rulings.
Common law is based on the concept of precedent, which means that it relies on judicial rulings from prior cases to set the standard for future legal decisions. These historical rulings from federal, state, or local courts create a precedent that guides judges in their decision-making process. Common law is not static but is constantly being developed and interpreted by judges, allowing for a certain level of flexibility and responsiveness to societal changes.
The determination of common law for a particular case involves a thorough process. It begins with research analysis, locating previous relevant cases, and extracting statements and sentences passed to determine the applicable common law. This process can be time-consuming and complex, requiring an in-depth understanding of past cases and judicial interpretations. Common law is particularly relevant in situations where no statute law applies, filling in the gaps left by statutory laws.
While common law provides a basis for decision-making, it is important to note that it is not binding on judges in the same way that higher court rulings are binding on lower courts. Judges are not obligated to follow the decisions of other judges, even within the same court. However, common law still plays a significant role in shaping legal outcomes and can influence the interpretation and application of statutory laws.
In summary, common law is unwritten and based on precedent, evolving through judicial interpretations and rulings over time. It provides a flexible framework that allows judges to respond to societal changes and fill in the gaps left by statutory laws. By relying on past cases and precedents, common law contributes to the consistency and fairness of the legal system while also adapting to the needs of society.
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Statute law is written and passed by legislative bodies
Statute law, also known as civil law, is written and passed by legislative bodies such as Parliament. It is a formal and rigid process, where laws are codified and applied as written, without relying on past cases for interpretation. These laws are developed by governments at various levels, from local to federal, and are organised into law codes. They are created to meet the needs of citizens, resolve issues, and formalise existing laws. An example of statute law is the Civil Code of Quebec, which "governs persons, relations between persons, and property".
Statute law is distinct from common law, which is unwritten and based on precedent. Common law, also known as "judge-made law" or case law, evolves through court decisions and is interpreted by judges. It is based on previous rulings by judges in similar cases, and new judgments can create new laws or establish new precedents. While common law is more flexible and interpretive, statute law is more rigid and exact.
The two types of law interact and can sometimes conflict. For example, in criminal law, concepts such as mens rea (knowledge of wrongdoing) and natural justice (fairness in procedure) are important common law principles that influence the outcome of cases, even though criminal law is primarily governed by statute.
In summary, statute law is a written and codified form of law created by legislative bodies, while common law is unwritten and based on judicial precedent and interpretation.
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Common law is also known as 'judge-made law'
Common law, also known as "judge-made law", is unwritten and based on case decisions and precedent. This means that common law is developed based on previous rulings by judges in similar cases. It is interpretive and evolves through court decisions, with judges interpreting existing law and determining new boundaries and distinctions. Common law is also known as case law, and it is of two types: one where judgments passed become new laws where there are no statutes, and the other where judges interpret existing laws and determine new boundaries.
Common law is based on the Latin term "Stare decisis et non quieta movere", which means "to stand by decisions and not disturb the undisturbed". The concept also involves the hierarchy of the courts, where the decisions of higher courts are binding on all lower court judges and not vice versa. Judges are not bound by the decisions of other judges in their court. Common law is accessible only by reviewing judicial rulings, and its major advantages are the independence of the judiciary and the ability of judges to respond to societal changes.
Common law is often contrasted with statutory law, or statute, which refers to laws written by legislative bodies such as Parliament. Statutory law is also called "civil law" and is more rigid in its application. It is applied as written, without relying on past cases to interpret it. Statutory law is developed by the government and is organized and codified into law codes. It covers areas regulated exclusively by statutory laws and those where common law is not applicable.
While common law and statutory law have different origins and applications, they are both essential to the functioning of the legal system and interact with each other. For example, statutory law can codify common law without displacing it, and common law concepts may be relevant in criminal law, which also involves statutory law.
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Statute law is also known as 'civil law'
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is derived from the Latin term "Stare decisis et non quieta movere", which means "to stand by decisions and not disturb the undisturbed". Common law is developed on a "slow incremental basis" and is being developed on an everyday basis. It is influenced by past decisions made by higher courts and judges in similar cases. Common law is practised in Australia, Canada, Hong Kong, India, New Zealand, the United Kingdom, and the United States.
Statute law, on the other hand, is also known as civil law. Civil law is derived from the Corpus Juris Civilis, but is heavily overlain by Napoleonic, Germanic, canonical, feudal, and local practices. It draws heavily from Roman law, which is considered one of the most intricate legal systems before the modern era. Civil law is practised in Quebec, Louisiana, and many other countries.
Civil law is a group of legal ideas and systems that proceed from abstractions, formulate general principles, and distinguish substantive rules from procedural rules. It holds case law secondary and subordinate to statutory law. Civil law codes are concise and broadly applicable, avoiding factually specific scenarios. They are enacted by a legislature and provide all citizens with a written collection of the laws that apply to them.
Statutory laws are written laws passed by the legislature and government of a country and are more rigid and less open to interpretation. They are developed by the government of a state or nation and are organized and codified into law codes. They cover all areas regulated by statutory laws exclusively, as well as areas where common law is not applicable.
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Common law is more flexible and interpretive
Common law is based on the Latin principle of "Stare decisis et non quieta movere", which means "to stand by decisions and not disturb the undisturbed". This principle also involves the hierarchy of the courts, where the decisions of higher courts are binding on all lower court judges. Judges are not bound by the decisions of other judges in their court. The process of determining common law for a particular case involves research analysis, locating previous relevant cases, and extracting statements and sentences passed to determine the applicable common law.
Common law is often referred to as "judge-made law" and can generate new common law over time. It is more flexible than statute law because it allows judges to respond to societal changes and interpret existing laws to determine new boundaries and distinctions. This interpretive nature of common law means that it can be adapted to changing social norms and values, ensuring that the law remains relevant and responsive to the needs of citizens.
The flexibility and interpretability of common law also allow for the consideration of natural justice and fairness in legal procedures. For example, in criminal law, common law concepts such as mens rea (the knowledge of wrongdoing or intent) are essential for determining criminal liability. The interpretation of common law by judges can influence the outcome of a case, including sentencing and defenses, demonstrating its dynamic and adaptable nature.
In summary, common law is more flexible and interpretive than statute law due to its reliance on precedent, judicial rulings, and the ability of judges to respond to societal changes. It evolves through court decisions and can be reinterpreted, ensuring its relevance and adaptability to societal needs and values.
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Frequently asked questions
Common law, also known as "case law" or "judge-made law", is unwritten and based on case decisions and precedent. It is developed on an everyday basis and evolves through court decisions.
Statute law, also known as "civil law" or legislation, is written and passed by a legislative body such as Parliament. It is more rigid in its application and is applied as written.
Common law and statute law interact in a number of ways. Statute law can codify common law without displacing it, and statute law always overrides common law in the case of a conflict.
The major advantages of common law are the independence of the judiciary and the ability of judges to respond to what is happening in society. However, it may be less user-friendly as it is only accessible by reviewing judicial rulings.
