Anaya Nolan
Common law and statutory law are the two primary sources of legal authority, and they can sometimes conflict. Common law, also known as case law or judge-made law, is primarily developed through judicial decisions and precedent. It is deeply rooted in stare decisis, which means to stand by things decided, where courts follow precedents established by previous rulings. On the other hand, statutory law is based on written statutes enacted by a state or national government and is organised into law codes. When common law and statutory law conflict, the resolution depends on the specific legal system and context. In some cases, the matter may be referred to a higher court or equity for a final decision.
| Characteristics | Values |
|---|---|
| Basis | Common law is based on judgments made in the past. Statutory law has statutes as its basis. |
| Development | Common law is developed on an everyday basis. Statutory laws are already written and need to be applied to specific cases. |
| Sources | Common law is also known as "judge-made law". Statutory laws are developed by the government of a state or nation. |
| Precedent | Common law is based on precedent. Statutory law interacts with common law by codifying it without displacing it. |
| Applicability | Common law is applicable in one-third of the world's population in common law jurisdictions or mixed legal systems. Statutory law covers areas regulated exclusively by statutory law and where common law is not applicable. |
| Judicial Independence | Common law allows for greater independence of the judiciary and the ability of judges to respond to societal changes. |
| Interpretation | Common law involves the interpretation of existing law and determining new boundaries and distinctions. |
| Fractionalization | The development of common law does not cause fractionalization of society. |
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What You'll Learn
- Common law is based on precedent and past judgments
- Statutory law is based on written statutes and is applied to specific cases
- Common law is also known as 'judge-made law'
- Statutory law is developed by the government of a state or nation
- Common law is deeply rooted in stare decisis (to stand by things decided)
Common law is based on precedent and past judgments
Common law, also known as case law, is a legal system that gives significant weight to past rulings and precedent. It is a system of law primarily developed through judicial decisions, rather than statutes. The presiding judge determines which precedents to apply when deciding on a new case. This process is known as "stare decisis" or "to stand by things decided", where courts adhere to precedents established by previous rulings.
Common law is deeply rooted in the principle of stare decisis, where judges are expected to respect the precedent value of previous decisions. This means that judges are not bound by the decisions of other judges in their court but will refer to prior rulings when making new ones. In a "case of first impression", with no applicable precedent or legislative guidance, judges can establish new precedent.
Common law is often referred to as "judge-made law", as it is based on the adjudication and application of precedent derived from case law. This means that judges interpret existing law and determine new boundaries and distinctions, creating new common law on a "slow incremental basis". For example, in the United States, federal courts are divided into regional circuits, and decisions of one circuit court are binding on the district courts within that circuit.
Common law systems are prevalent in former British colonies, which have adopted English common law and precedent as the default law. These systems value the independence of the judiciary and the ability of judges to respond to societal changes. However, common law may be considered less user-friendly as it requires reviewing judicial rulings to understand the precedent.
Overall, common law is a dynamic and evolving legal system that values stability through precedent while allowing judges the flexibility to adapt to new circumstances and societal needs.
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Statutory law is based on written statutes and is applied to specific cases
The English legal system spread across the British Isles and later to its colonies, many of which retain the common law system today. Common law, also known as case law, is a body of law primarily developed through judicial decisions rather than statutes. It is deeply rooted in stare decisis, which means "to stand by things decided". Here, the presiding judge determines which precedents to apply in deciding each new case. In a "case of first impression" with no precedent or clear legislative guidance, judges can establish new precedent.
Statutory law, on the other hand, is based on written statutes and is applied to specific cases. It is developed by the government of a state or nation and is organised and codified into law codes. Statutory laws cover all areas regulated by statutory laws and those where common law is not applicable. An example of this interaction between common law and statutory law is the Criminal Code, which codifies criminal law by statute. However, criminal law involves important common law concepts, such as mens rea and natural justice.
Common law is based on judgments made over hundreds of years, and while it may incorporate certain statutes, it is largely based on precedent. In contrast, statutory laws are already written and simply need to be applied to specific cases. For example, in Ontario, Canada, the Employment Standards Act (ESA) states that an employer owes a terminated employee one week per year of service, up to eight weeks. However, under common law, employers must provide "reasonable notice", which could be up to two years.
In summary, statutory law is based on written statutes enacted by the government, while common law is based on judicial precedent and decisions made over time. When the two conflict, statutory law typically prevails, but the matter may be referred to equity or a higher court for a final decision.
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Common law is also known as 'judge-made law'
In the event of a conflict between statute law and common law, the statute law prevails. However, the matter may be referred to equity or the High Court for a decision. Common law is also known as judge-made law, judicial precedent, or case law. It is the body of law primarily developed through judicial decisions and precedents rather than statutes. It is deeply rooted in stare decisis, which means "to stand by things decided". This means that courts follow precedents established by previous decisions.
The term "judge-made law" was introduced by Jeremy Bentham as a criticism of the pretense of the legal profession. Common law originated in the practices of the courts of the English kings in the centuries following the Norman Conquest. The king's judges would resolve disputes based on their interpretation of the customs, and these decisions would be recorded and filed. Over time, a rule known as stare decisis, or precedent, developed, whereby a judge would be bound to follow the decision of an earlier judge. Once judges began to regard each other's decisions as binding precedent, a uniform system of common law was established throughout the country.
Common law is often contrasted with Roman-derived civil law, which has fundamentally different processes and forms of reasoning. Common law systems give great weight to judicial precedent and the style of reasoning inherited from the English legal system. Approximately one-third of the world's population lives in common law jurisdictions or in mixed legal systems that integrate common law and civil law.
In common law systems, precedents are maintained over time through court records and are historically documented in collections of case law referred to as yearbooks and law reports. The early development of case law in the thirteenth century has been traced to Bracton's On the Laws and Customs of England, which led to the yearly compilations of court cases known as Year Books. These Year Books are a principal source of knowledge about the developing legal doctrines, concepts, and methods from the 13th to the 16th centuries, when common law evolved into its recognizable form.
While common law may incorporate certain statutes, it is primarily based on precedent and judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in deciding each new case. In a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent.
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Statutory law is developed by the government of a state or nation
The laws governing a country or nation are essential aspects of its existence, shaping its history and future direction. Most nations follow a combination of common law and statutory law. Common law, also known as "judge-made law" or case law, is primarily developed through judicial decisions and precedent. It is deeply rooted in stare decisis, which means "to stand by things decided", where courts adhere to precedents established by previous rulings. In the absence of applicable statutes or legislative guidance, judges are empowered to resolve legal issues and set new precedents. Common law is particularly prevalent in the English-speaking world and among former British colonies, which have adopted it as part of their legal systems.
In contrast, statutory law is developed by the government of a state or nation. It is based on written statutes and codes that are organised and codified into law. Statutory laws are applied to specific cases and cover areas where common law may not be applicable. They can interact with and codify common law without displacing it. For example, criminal law is codified by statute but incorporates common law concepts such as mens rea and natural justice.
While common law is based on the gradual accumulation of judicial precedents over time, statutory law involves the creation of new laws or the amendment of existing ones by the legislative body of a state or nation. These laws are typically written and enacted by the government, reflecting the needs and priorities of the governing body. They are often a response to emerging issues or changing societal dynamics, filling gaps or providing clarity where common law may be insufficient or ambiguous.
The relationship between common law and statutory law is complex and sometimes leads to confusion. While common law is dynamic and evolves through judicial interpretation, statutory law provides a more static framework that can be referred to and applied directly to specific cases. In some instances, conflicts may arise between the two, requiring adjudication to determine which takes precedence.
In conclusion, statutory law is an essential component of a state or nation's legal framework, developed and enacted by its government. It interacts with common law, a system based on judicial precedent, by providing a written framework that supplements and clarifies the application of legal principles. While common law is dynamic and adaptable, statutory law offers a more fixed reference point, and in cases of conflict, the resolution depends on the specific circumstances and the prevailing legal mechanisms in place.
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Common law is deeply rooted in stare decisis (to stand by things decided)
Common law is a legal system that is deeply rooted in stare decisis, or "to stand by things decided". This means that it is primarily based on judicial decisions made in previous similar cases, rather than on statutes. Judges refer to and apply precedents established by past rulings when deciding new cases. This is in contrast to statutory law, which is developed by the government and codified into law codes.
Common law, also known as case law or judge-made law, is a system that gives significant weight to judicial precedent and the reasoning inherited from previous judicial decisions. It is a process that involves researching and analysing past cases, extracting statements and sentences, and then applying the relevant common law to a particular case. Common law is developed incrementally over time, with judges empowered to interpret existing law, determine new boundaries, and establish new precedents in novel cases without precedent.
The concept of stare decisis in common law is based on the idea of maintaining stability and consistency in the law by adhering to past decisions. This promotes predictability and certainty in the legal system, as it provides a framework for resolving similar disputes. Stare decisis also recognises the importance of respecting the work and reasoning of previous judges, ensuring that their decisions are not easily overturned.
However, it is important to note that stare decisis does not mean that judges are strictly bound by previous decisions. While they give deference to precedent, judges in the common law system have the independence and flexibility to respond to societal changes and interpret the law accordingly. In certain circumstances, such as when a previous decision is deemed incorrect or outdated, judges can depart from stare decisis and overrule past precedents.
Overall, the deep rooting of common law in stare decisis reflects the importance of judicial precedent and the incremental development of law through past decisions. This system provides a balance between stability and flexibility, allowing the law to adapt to changing societal needs while maintaining consistency and respect for legal traditions.
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Frequently asked questions
Common law is the body of law derived from judicial decisions, rather than from statutes or constitutions. It is deeply rooted in stare decisis, which means "to stand by things decided".
Statute law is a statutory law that is already written and needs to be applied to a specific case. It is developed by the government of a state or nation and is organised and codified into law codes.
Common law and statute law interact and can create confusion when precedent offers a different conclusion than the law codified in legislation. For example, in the case of Ontario's Employment Standards Act, a terminated employee is owed one week per year of service, up to eight weeks, according to the statute law. However, under common law, employers must provide "reasonable notice", which is typically interpreted as a minimum of three months and can go up to two years.
When common law and statute law conflict, the statute law prevails. However, the matter may also be referred to equity or the High Court for a decision.
Common law is followed in many former British colonies, such as the United States and Canada. In the US, common law can be seen in the interpretations of the US Constitution, legislative statutes, and agency regulations by federal courts. In Canada, common law is used in the English-speaking provinces, while Quebec uses the civil law system derived from Roman law.
