Kara Sears
The laws governing a country are essential to its existence and contribute to its history. Common law and statutory laws are followed by most nations in the world, and both are necessary for justice to be served. While common law is more malleable and is based on past rulings by judges, statutory law is based on current statutes (written laws) and is more strict in its application. This article will explore the differences between common law and statutory law and discuss which is more important.
| Characteristics | Common Law | Statutory Law |
|---|---|---|
| Basis | Precedent | Current statutes (written laws) |
| Flexibility | More flexible | Less flexible |
| Formation | Evolves through a series of gradual steps | Passed by a legislative body |
| Applicability | Applicable in unusual cases | Applicable in cases with existing statutes or written rules |
| Jurisdiction | Binding only in a particular jurisdiction | Applicable across a state or nation |
| Interpretation | Open to interpretation | Strict in its application |
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What You'll Learn
Common law is more flexible than statutory law
Common law and statutory law are the two main types of law within a legal system, and both are necessary for justice to be served. Common law is also known as case law, judicial precedent, judge-made law, or judicial lawmaking. It is a body of unwritten laws based on legal precedents established by the courts. Common law is deeply rooted in stare decisis, which means "to stand by things decided". It is largely based on precedent, or judicial rulings made in previous similar cases. In a "case of first impression", where there is no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent. Common law is more flexible than statutory law because it is not absolutely bound by precedent and can be reinterpreted and revised without legislative intervention to adapt to new trends in political, legal, and social philosophy.
Statutory law, also known as civil law, is strict in its application and is not subject to the same interpretation as common law. Statutory laws are written laws passed by the legislature and government of a country and are accepted by society. 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 those areas where common law is not applicable. Statutes may codify existing common law, create new causes of action that did not exist in the common law, or legislatively overrule the common law.
Common law is also more flexible because it is not subject to the same interpretation as statutory law. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is derived from its original appearance in medieval England and is still very much in effect in the US and elsewhere today, including Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. Common law has also been adopted in Ghana, where it was inherited from British colonization and has been enshrined in the 1992 Constitution.
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Common law is deeply rooted in stare decisis
Common law, also known as case law, is deeply rooted in stare decisis, a Latin term meaning "to stand by things decided". This principle is based on the idea that courts should follow precedents established by previous judicial decisions. In other words, when a similar case has already been resolved, courts will typically align their reasoning with the precedent set in that previous decision. This gives common law its malleable nature, allowing it to evolve through a series of gradual steps over time.
The role of judges in common law is crucial. Judges presiding over cases determine which precedents to apply, drawing from past rulings made by higher courts. This ensures stability and consistency in the legal system, as lower courts generally adhere to the decisions of higher courts. However, lower courts are not absolutely bound by precedent and can deviate or modify it if they find it outdated or not closely related to the current case. In such situations, judges have the power to establish new precedents, particularly in ""cases of first impression" where no clear precedent exists.
Common law's reliance on stare decisis stands in contrast to statutory law, which is based on written statutes or codes enacted by legislative bodies. While statutory law provides a clear and strict framework, common law allows for interpretation and the gradual evolution of legal principles. This characteristic of common law enables it to adapt to changing social, political, and legal philosophies over time.
The importance of stare decisis in common law can be traced back to its origins in medieval England, where it was common to all the king's courts. Today, common law continues to influence legal systems in various countries, including the United States, Australia, Canada, and the United Kingdom. It is particularly valuable in addressing unusual cases that fall outside the scope of existing statutes or written rules, contributing to the dynamic and flexible nature of the law.
In conclusion, the deep roots of common law in stare decisis promote stability and consistency within legal systems. By respecting precedents while allowing for their evolution, common law ensures that the law remains relevant and responsive to the needs of society. This balance between tradition and change is a fundamental characteristic of common law and sets it apart from statutory law.
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Statutory law is based on current statutes
Statutory law is a written law enacted by a legislative body, such as Congress or a state legislature. It is a formal written enactment that typically declares, commands, or prohibits something. Statutes are traditionally published in chronological order based on the date of enactment.
Statutory laws are developed by the government of a state or nation and are organised and codified into law codes. They cover all areas regulated by statutory laws exclusively, as well as areas where common law is not applicable. They are written laws passed by the legislature and government of a country and are accepted by society.
Statutory law can be found in two types of publications: compilations of statutes or codified laws. Both have the same wording but differ in format. A federal law is given a number that indicates the Congress that passed it and a second number that represents the chronological order of its passage. For example, "Pub. L. 88-352" indicates the 352nd law passed by the 88th Congress. After passage, a law is codified or published according to its subject category.
To determine if a statute is current, researchers can check the Hein Checklist of Statutes, which provides the most current date of that title. Researchers can also check the pocket parts in the back of the book, which are small paper inserts that provide updates to the bound volume. If the statute is not in the pocket part, then the bound volume represents the current statute.
Statutory laws are already written and need only to be applied to a specific case. They are based on statutes, which are written laws passed by a legislative body.
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Common law is not compiled into rules and statutes
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, which means "to stand by things decided". Common law is not compiled into rules and statutes, and it is not codified. Instead, it is based on precedent and judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply when deciding a new case.
Common law is more flexible than statutory law. Common law courts are not absolutely bound by precedent and can reinterpret and revise the law without legislative intervention to adapt to new trends. This allows common law to gradually evolve over time, reducing disruptive effects. In contrast, the legislative process for creating statutory law is lengthy and complex.
While common law is not compiled into comprehensive codes or statutes, it does rely on some scattered statutes and legislative decisions. However, it is primarily based on precedent and judicial rulings. The first attempt at a comprehensive compilation of common law was made by Lord Chief Justice Edward Coke in the 17th century.
Common law promotes stability and consistency in the legal system because outcomes are based on previous case law rather than subjective viewpoints. It also allows for efficiency in court proceedings as judges only need to follow precedent. Common law is adaptable and can address situations not originally predicted by lawmakers.
In summary, common law is a body of unwritten law based on legal precedents and judicial rulings. It is not compiled into comprehensive codes or statutes but relies on scattered statutes and precedent. Common law is flexible, promotes stability and efficiency, and can address unforeseen situations.
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Statutory law is passed by federal and state governments
Statutory law is a written law passed by the federal and state governments, also known as legislature. In the United States, the federal government passes statutory laws in the form of acts by the United States Congress, which are designated as Public Laws or Private Laws. Public laws relate to the general public, while private laws relate to specific institutions or individuals. Most of the laws passed by Congress are public laws. Once a bill is passed by Congress and signed by the President, it becomes a Public Law. These laws are given a number based on the Congress and when they were issued. For example, "Pub. L. 88-352" indicates the 352nd law passed by the 88th Congress.
In the US, both the US Congress and individual state legislatures have the power to pass statutes. For example, civil rights, immigration, interstate commerce, and constitutional issues are subject to federal jurisdiction. On the other hand, issues such as domestic relations, domestic violence, marriage and divorce, corporations, property, contracts, and criminal laws are generally governed by states unless there is federal preemption.
Statutory laws are developed by the government of a state or nation and are organized and codified into law codes. They cover areas regulated exclusively by statutory laws and areas where common law is not applicable. These laws are passed to meet the needs of citizens, resolve outstanding issues, and formalize existing laws. They are found in two types of publications: compilations of statutes or codified laws. Both have the same wording but differ in format. After passage, a law is codified or published according to its subject category.
Statutory laws are already written and need only to be applied to a specific case. They are based on statutes and can be passed by various government agencies of a country. They are issued by federal and state governments, and ordinances are passed by towns and cities, all carrying the power of law.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in stare decisis, meaning "to stand by things decided", where courts follow precedents established by previous decisions. Statutory law, on the other hand, is based on current statutes or written laws passed by legislatures and governments.
Both common law and statutory law are essential components of the legal system in most nations. They each have different origins and applications, but together they set standards of acceptable behaviour and justice for citizens and their governments.
In general, statutes supersede common law. They may codify existing common law, create new causes of action, or overrule the common law. However, common law courts can reinterpret and revise the law without legislative intervention, adapting to new trends.
