Keith Mack
Common law and statutory law are two different systems of law that are followed by most nations in the world. Common law, also known as case law, is unwritten and based on precedent. It is developed on a daily basis through court decisions and is interpreted and evolved by judges. Statutory law, on the other hand, is written and codified. It is enacted by a legislative body and tends to be more rigid in its application. While common law is based on past rulings, statutory law is applied as written, without relying on past cases for interpretation.
| Characteristics | Common Law |
|---|---|
| Definition | Law based on precedent: previous decisions made by other judges in similar cases |
| Basis | Preceding rulings by judges |
| Nature | Interpretive, evolves through court decisions |
| Applicability | Applicable in most English-speaking nations |
| Characteristics | Statutory Law |
| --- | --- |
| Definition | Laws written by legislative bodies such as Parliament |
| Basis | Statutes |
| Nature | Rigid, applied as written |
| Applicability | Applicable in Quebec, Canada |
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What You'll Learn
Common law is unwritten and based on precedent
Common law, also known as case law, is unwritten and based on precedent. It is a system of law that evolves through court decisions and is generated by judges interpreting what the common law is in each case. This interpretation of the law is based on previous rulings by judges in similar cases, known as precedents. These precedents are not binding on judges, but they are persuasive and help maintain consistency in the law. Common law is flexible and allows judges to respond to changes in society.
Common law is often described as an "ever-changing story" as it is constantly evolving and being reinterpreted by judges. It is not written in statutes or books but is instead based on the judgments and rulings made in previous cases. These historical rulings from federal, state, or local courts set a precedent for future legal decisions. For example, in a case concerning assault with a deadly weapon, a judge may refer to previous cases involving similar facts to determine whether the weapon used constitutes a "deadly weapon" under the law.
The concept of 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." This reflects the idea that common law is based on respecting and following the decisions made in previous cases.
Common law is also used to fill in interpretive gaps in statutory law. For example, in criminal law, common law concepts such as mens rea (the knowledge of wrongdoing forming criminal liability) and natural justice (fairness in legal procedures) are important despite not being explicitly written in statutes.
Common law is primarily used in English-speaking countries, while most other countries use the civil law system, which is based on written codes and statutes. However, even within the civil law system, judges may refer to prior court decisions when interpreting the applicable code.
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Statutory law is written and passed by a legislative body
Statutory law, also known as civil law, is written and passed by a legislative body. It is a more rigid form of law, and judges apply it as it is written without relying on past cases to interpret it. These laws are enacted by legislative bodies such as Parliament, as well as federal and state governments, and even local towns and cities.
The process of creating a new statutory law usually begins with a bill proposed in the legislature, which is then voted on. The bill may go through several hearings, edits, and votes before being approved. Once approved by the legislature, it is passed to the executive branch. If the executive signs the bill, it becomes a statute. If the executive vetoes the bill, it is returned to the legislature, which can override the veto by passing the bill a second time with a larger majority.
Statutory laws are written laws that are enacted by a legislative body. They are different from regulatory, administrative, and common law. Regulatory and administrative laws are passed by executive agencies, while common law is generated through court decisions.
Statutory laws are more rigid and are applied as written. They are also subject to change, as later legislatures can overturn, modify, or update statutes, especially if they are found to be unconstitutional. Some statutes even have expiration dates and must be renewed. This allows statutory law to remain relevant to the people it governs.
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Common law is interpretive and evolves through court decisions
Common law, also known as case law, is unwritten and based on precedent. It is interpretive and evolves through court decisions. This means that common law is generated through court decisions and is based on precedent, where judges interpret the existing law and determine new boundaries and distinctions.
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 concept 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 but must respect the precedent value of previous decisions.
Common law is an ever-changing story that fills in the interpretive gaps in statutes. It is used to interpret and apply statutory law, and because we want those interpretations to be consistent, it has a similarly binding authority as statutes. For example, in a case of assault with a deadly weapon, if the statute lists guns and knives as examples but the weapon used was a baseball bat with a railroad spike, a judge may rule that the modified baseball bat is a deadly weapon. This ruling then becomes a precedent in common law, which can be used in future cases with similar facts.
Common law is also used to interpret criminal law concepts such as mens rea (the knowledge of wrongdoing or intent that forms criminal liability) and natural justice (fairness in legal procedures). In criminal cases, understanding both common law and statutory law is vital, as a skilled attorney will know how precedent may influence the outcome of a case.
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Statutory law is applied as written and is more rigid
Statutory law is a written law enacted by a legislative body, such as Parliament. It is also referred to as civil law and is much more rigid in its application. Statutory laws are developed by the government of a state or nation and are organised and codified into law codes. They are applied as written, without relying on past cases to interpret them.
Statutory laws are created by legislative bodies and are passed by various government agencies of a country. They are written laws that are enacted by a legislative body and differ from common law, regulatory law, and administrative law. Regulatory or administrative laws are passed by executive agencies. Statutory laws are created through a process that begins as a bill proposed in the legislature and voted upon. The proposed bill can go through several hearings, edits, and votes before being approved. Once approved, it passes to the executive branch, and if signed, becomes a law.
Common law, on the other hand, is unwritten and based on case decisions. It is also known as case law or judge-made law. It is based on precedent and previous rulings by judges in similar cases. Common law is interpretive and evolves through court decisions. It is more flexible and allows judges to respond to what is happening in society.
While statutory law is applied as written, it is still subject to change. Later legislatures can overturn, modify, or update statutes, and they can even be written with an expiration date. This allows statutory law to remain relevant to the people it governs while maintaining its rigidity in application.
In summary, statutory law is applied as written and is more rigid due to its formal legislative basis. It is created through a structured process involving legislative bodies and executive branches. Common law, in contrast, is unwritten and interpretive, allowing for flexibility and judicial discretion.
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Common law can be reinterpreted by judges
Common law, also known as case law, is unwritten and based on precedent. It is developed on the basis of preceding rulings by judges and evolves through court decisions. This means that common law can be reinterpreted by judges. Judges interpret existing law and determine new boundaries and distinctions. This is also known as "judge-made law". However, while judges may be sensitive to the times they live in, broad sweeping changes rarely occur in common law because judges must respect the precedent value of previous decisions.
Common law is based on "Stare decisis et non quieta movere", a Latin term that means "to stand by decisions and not disturb the undisturbed". This concept also involves the hierarchy of the courts, where the decisions of higher courts are binding on all lower court judges and not the other way around. Judges are not bound by the decisions of other judges in their court.
The determination of common law for a particular case involves research analysis, location of previous relevant cases, and extraction of statements and sentences passed to determine the applicable common law.
Common law is generally used in the English-speaking world, while most countries use the civil system. Common law is only accessible by reviewing judicial rulings, which can be a disadvantage as it is less user-friendly. However, the major advantages of this system are the independence of the judiciary and the ability of judges to respond to societal changes.
Statutory law, on the other hand, is written and codified. It is created by legislative bodies and passed by the legislature and government of a country. Statutory laws are instructions that are applied as written and tend to be more rigid. They are developed by the government of a state or nation and are organised and codified into law codes.
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Frequently asked questions
Common law, also known as case law, is law as declared by judges. It is based on precedent, which means it depends on judicial rulings from prior cases. Common law is unwritten and is being developed on an everyday basis.
Statutory law is written law, enacted by a legislative body at the local, state, or federal level. Statutory law is also called civil law and is much more rigid in its application.
Statutory law can codify common law without displacing it. Common law, on the other hand, can reinterpret statutory law. For example, in criminal law, common law concepts like mens rea (knowledge of wrongdoing) influence the outcome of cases based on statutes.
Most nations in the world follow a combination of both common law and statutory law. While the English-speaking world primarily uses common law, most countries use the civil system.
