Keith Mack
The laws governing a country are an important aspect of its existence, contributing to its history and future. Most nations follow a combination of common law and statutory law. Common law is based on precedent, evolving through the accumulation of judicial decisions over time, which then become the basis for future rulings. Statutory law, on the other hand, is written law passed by the legislature and government of a country. It is more rigid and provides a clear set of rules and regulations. This comparison raises the question: which is more important, statutory or common law?
Characteristics of Common Law and Statutory Law
| Characteristics | Common Law | Statutory Law |
|---|---|---|
| Basis | Precedent | Written statutes |
| Binding | Not binding on lower courts | Binding on individuals, organisations and government bodies |
| Adaptability | More adaptable | Less adaptable |
| Interpretation | Open to interpretation | Based on the language and intent expressed in the written legislation |
| Creation | Developed by judicial decisions | Developed by legislative bodies |
| Applicability | Applicable in unusual cases | Applicable in cases with existing statutes |
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What You'll Learn
Common law is more adaptable to societal change
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 adaptable to societal change in several ways.
Firstly, common law is more malleable 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 in political, legal, and social philosophy. This allows common law to gradually evolve over time, reducing disruptive effects.
Secondly, common law is developed on an everyday basis without causing fractionalization of society or creating any expense to the state. It allows judges to establish new precedents in "cases of first impression" with no clear legislative guidance, making it adaptable to unique or unprecedented situations.
Thirdly, common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. This means that common law can be influenced by societal changes and shifts in popular thought, which can lead to the overturning of outdated or biased precedents. For example, in England, common law was changed in the 1970s due to societal shifts regarding women's rights, altering custody entitlements during divorce proceedings.
Finally, common law's ability to leave the legal code open for interpretation becomes increasingly important as technology evolves and plays a greater role in our lives. This adaptability allows common law to address situations that may not have been contemplated by the legislature at the time a statute was written.
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Statutory law is created by a formal legislative process
Statutory laws are written laws that are passed by the legislature and government of a country. They are accepted by society and are based on statutes. These statutes are often codified, meaning they are numbered, collected, and indexed in one place. They are also precisely written, leaving little room for interpretation.
The legislative process is difficult to initiate, as it involves multiple steps such as committee systems, debates, potential conference committees, voting, and presidential approval. Once a bill is passed by Congress and signed by the President, it becomes a Public Law, receiving a Public Law number based on the Congress and when it was issued.
Statutory laws are different from common law, which is more malleable and can be revised or reinterpreted by judges without legislative intervention. Common law is based on precedent and evolves gradually over time, adapting to new trends and philosophies. It is important to note that both common law and statutory law are followed by most nations, and a combination of both is necessary for justice to be served.
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Common law is decided by judges' interpretation
Common law, also known as case 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" in Latin. In other words, common law is decided by judges' interpretation and application of previous rulings to new cases.
When a court faces a legal argument, judges determine which precedents to apply in deciding each new case. They refer to previous similar cases and use the judgments rendered then as a basis for deciding the current case. This promotes stability and consistency in the legal justice system, as similar cases are decided in a similar manner.
However, in a "case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent. In such cases, judges interpret the existing law, determine new boundaries, and establish new precedent. This flexibility allows the law to adapt to new trends in political, legal, and social philosophy without causing fractionalization of society or creating any expense to the state.
While common law is primarily developed through judicial decisions, it may also incorporate certain statutes. Statutes are generally understood to supersede common law and can codify existing common law, create new causes of action, or legislatively overrule the common law. In this way, common law can provide the inspiration for new legislation to be enacted.
Overall, common law is a dynamic and flexible system of law that evolves through judges' interpretation and application of precedents to new cases, allowing the law to adapt to changing social, political, and legal realities.
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Statutory law is a clear set of rules
Statutory law, also known as legislation, is a formal process that involves drafting, debate, and voting. It is created by a legislative body, such as a parliament or congress, and is a written law that provides a clear set of rules and regulations. It is a more organized and predictable legal system that establishes uniformity and effectively addresses societal needs.
The enactment of statutory laws brings order and reduces bias in systems where laws may have been applied differently in different cases. It is a response to the increasing complexity of societies, where a clear framework is required to effectively govern. Statutory law is, therefore, a more rigid framework that leaves less room for interpretation. It is based on the language and intent expressed in the written legislation.
Statutory law is binding and must be followed by all individuals, organizations, and government bodies. It is a codified law that is passed by various government agencies, such as federal and state governments, and even local ordinances. The process of changing or amending statutory law is often time-consuming as it involves legislative bodies and a formal process.
In contrast, common law is more malleable and adaptable. It is not bound by precedent and can be reinterpreted and revised by judges without legislative intervention. It evolves gradually over time, adapting to new trends in political, legal, and social philosophy. Common law is a body of unwritten laws based on legal precedents and is deeply rooted in stare decisis, which means "to stand by things decided". It is derived from its original appearance in medieval England and is still in effect in the US, the UK, and many other countries today.
Both common law and statutory law are necessary for serving justice and are followed by most nations worldwide. They interact with each other and with other legal systems, such as regulatory law.
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Common law is not collected in a single source
Common law is a body of unwritten laws based on legal precedents established by the courts. It is more malleable than statutory law, which is already written and simply needs to be applied to a specific case. Common law is derived from its original appearance in medieval England, and it is still very much in effect in the US and elsewhere today.
In the US legal system, the judiciary serves as the primary interpreter of the law. Courts issue their interpretations as judicial opinions, which then act as precedent to create lasting legal rules. The practice of republishing judicial opinions for dissemination and use has existed since medieval times. However, prior to modern times, only select cases on pre-identified topics tended to be published. The modern system of publishing judicial opinions began in the late nineteenth century when John B. West systematically collected appellate-level opinions and published them in multi-volume sets he termed "reporters." West Publishing continues to publish the dominant amount of American caselaw today. Lawyers use digests and reporters in combination to reconstruct the common law on a given subject.
In the United States, Restatements of various subject matter areas (e.g., Contracts, Torts, Judgments) collect the common law for the area. The ALI Restatements are often cited by American courts and lawyers for propositions of uncodified common law and are considered highly persuasive authority, just below binding precedential decisions.
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Frequently asked questions
Common law is the body of law developed through judicial decisions and precedents rather than statutes. It is deeply rooted in stare decisis, which means that courts follow precedents established by previous decisions.
Statutory law, also known as legislation, is the body of law resulting from statutes or laws passed by a legislature. These laws are created through a formal process that involves drafting, debate, and voting.
Common law can adapt to changing societal needs and values as judges interpret and apply legal principles in light of contemporary circumstances. Common law courts are not absolutely bound by precedent and can reinterpret and revise the law without legislative intervention.
Changing statutory law typically requires the legislative body to amend or enact new legislation, which can be a more time-consuming process than changing common law. Statutory laws are written and codified, providing a clear set of rules and regulations.
Both statutory and common law are important and necessary for serving justice. Statutory law is generally understood to supersede common law, but common law still has practical applications in areas such as contract law and the law of torts. Common law offers flexibility and adaptability, while statutory law provides a more rigid framework.
