Introduction
The common and statutory laws together form a country’s body of law. The absence of one type will cause flaws in the law system. Both types are essential for a comprehensive system of law, as common law makes up for what statutory law does not cover. For example, legislatures did not consider passing a law that forbids driving while inebriated before the latter half of the 18th century, as automobiles were not invented at that time.
The gaps in the statutory laws are revealed only when an unforeseen case arises. So, judges exercise their power to set a precedent that becomes the common law. A common law may become a written law by the passing of a statute. Some countries’ legal systems view common laws as equally significant as statutes, while others use the civil law system that considers law codes as important but does not view common law as binding. However, one-third of the world’s population lives in mixed-legal systems.
Common Law Vs. Statutory Law
Common law is based on judicial opinions, whereas statutory law is based on statutes (laws passed by legislatures). Common laws are not codified. However, statutory laws are codified written laws.
Difference Between Common And Statutory Law In Tabular Form
| Parameters of Comparison | Common Law | Statutory Law |
| Meaning | Common laws refer to case precedents (judicial rulings in past cases). New common laws come into force based on the decisions judges make in court. | Statutory laws are a country’s written laws. |
| Origin | The common laws are of judiciary origin. That is, they originate in the system of courts. | Statutory laws are of legislative origin. That is, an assembly armed with the power to make laws for the country sets forth these laws. |
| Amendment | Common law can be amended by statutory law. | Statutory law can only be amended by passing another statute (rule or law). |
| Nature | It is instructive in nature. | It is prescriptive in nature. |
| Operational level | Procedural | Substantive |
What Is A Common Law?
Statutory laws were not written anticipating every possible situation in mind. It is impossible to do so. Therefore, when an unprecedented case arises, common laws come into effect. So what are common laws? They are the decision made by judges due to a lack of statutory laws to guide them. These decisions/rulings act as a precedent for future cases because of the principle of stare decisis. That is, precedents guide how a case should be handled thereafter.
Precedents have a binding effect on courts and judges, and they become the common law. However, if a lower court feels that the case it is handling is distinct from the previous case or that the precedent has become outdated, it may modify or deviate from the precedent. In short, common laws are used in cases where no statutory laws apply.
A famous case that explains common law and precedent clearly is Brown v. Board of Education. Chief Justice Warren ruled that separate but equal public education was unconstitutional. The precedent set was that separate educational facilities based on racial segregation spell out inequality.
Most Common Connotations
Common law is a body of law derived from judges’ opinions and decisions with respect to the cases they deal in. General Common Law arises from the court’s authority to define law without any statute to support such definition. Interstitial Common Law arises from the court’s interpretation of an existing statute. Some people view common law as a body of law that arose out of ancient universal customs. However, they come into effect instantly when pronounced by courts.
Principles Of Common Law
Common law requires determining what the law is when handling a case. It requires detailed research and analysis of a relevant statute. Decisions of higher courts hold more weight than those of lower courts. The common law systems are incredibly complex though they seem simple in theory. A court’s decision is binding in only a certain jurisdiction. Moreover, within the jurisdiction, the higher courts’ decisions have a binding effect on lower courts, whereas the lower courts’ decisions are only persuasive (not binding) on the other courts.
Even well into the 19th century, common law relied on ancient maxims. Some maxims were acceptable like claiming that no one should judge a case in which they have an interest, while others did not stand the test of time and became outdated. Therefore, the reliance on old maxims faced criticism. Fortunately, in the 20th century, the factor that influences common law is not what was said centuries ago but what a judge learns or experiences in everyday life, from other fields like social science, business, and foreign court decisions.
The following countries have common laws as the basis of their legal systems: Australia, Belize, Cyprus, Ghana, Hong Kong, India, Ireland, Malaysia, New Zealand, Nigeria, Kenya, Philippines, South Africa, the United Kingdom, and so on.
Alternatives To The Common Law System
The civil law system is the widely used alternative to the common law system. In common law systems, a precedent is binding; however, in a civil law system, case laws do not have a binding effect. They are merely advisory. Case laws acquire significance (that is, they become highly persuasive) only when the doctrine of jurisprudence constante comes into effect.
The common law system favors the separation of power between the judicial and the executive branches, whereas the civil law system tolerates an individual official’s exercise of both powers. Another major difference between the common and civil law systems is the former uses an adversarial system, while the latter uses an inquisitorial system. In the adversarial system, two sides present their case to the judge; however, in the inquisitorial system, the magistrate has dual roles. He acts for one side during the investigation phase and the other side when collecting evidence or building defenses.
Socialist countries use a socialist law system, which is a modified form of the civil law system with additions from Marxist ideology. The Muslim World (Islamic community – consists of people adhering to Islamic religious beliefs) uses Sharia, which is also known as Islamic law. Many churches use canon law. In the medieval period, the Catholic Church’s canon laws (set of ordinances) influenced the common law.
What Is A Statutory Law?
Statutory laws are the laws passed by the federal and state governments. It is the written law according to which the country’s citizens should behave. In the US, the President must approve a statute for it to become law. However, the legislature can override the President’s veto with a supermajority (two-thirds vote in favor of the statute). Hence, a statute is the legislature’s will. The federal statutory laws trump any conflicting statutes passed by the state legislatures.
Creation Of Statutory Laws In The US
Once the President approves and signs the bill the legislature put forward, it becomes public law. A public law when published three times, becomes a statutory law. The first publication is by the Office of the Federal Register in the form of slip law. Later, it is published in the United States Statutes At Large, and the final publication is by codification. Codification is the process of integrating new statutes into the existing body of law. The statutes become law codes when codified. The United States Code is the law code of the US.
Interpretation Of Statutory Laws
Generally, statutory laws mean what they say. However, if a word in the statutory law is ambiguous, interpretation depends on the context. The Plain meaning rule or the literal rule posits that statutes must be interpreted based on the language’s ordinary meaning unless explicitly stated otherwise. Literal rule is what the law says instead of what the law intends to say.
A problem with the literal interpretation of statutes (Literal Rule) was that they sometimes led to absurd rulings. For example, in the past, a Bolognian law stated that whoever drew blood on the streets will be severely punished. If the literal interpretation prevails, even a surgeon opening the vein of a person having a fit on the streets would lead to prosecution. That is absurd, and people’s common sense blanches at the mere thought. Therefore, the Golden Rule concept was introduced.
The Golden Rule (known as the soft plain meaning rule in the US)posits that the statute must be interpreted based on the intent with which the statute was made. Burton J was the first to suggest that a statute’s grammatical meaning must be modified if it contradicts the statute’s purpose. Therefore, judges use the golden rule to avoid absurdities (a result contrary to the accepted public policies) and inconsistencies. In all other circumstances, the literal rule has more significance.
The golden rule was applied in a case in 1935 where the murderer (the son) committed suicide but still had the right to inherit his mother’s (the murder victim) properties. The inheritance would have passed to the murderer’s descendants if the Administrations of Estate Act had been literally interpreted. However, using the golden rule, the inheritance was passed on to the other family members of the murdered woman. The use of the golden rule is justified, as otherwise, the descendants of the murderer would have profited from his crimes.
The Mischief rule applies when interpreting a statute passed to overcome a defect in the common law. It considers the exact wording and the intention behind the statute. The mischief rule is more flexible than the literal or the golden rule. The rule was first applied in the famous Heydon’s case in 1584. Four points must be analyzed when applying the mischief rule:
- The common law that existed before the statute being interpreted was passed.
- The defect in the common law (what did it not provide for).
- The remedy put forward to resolve the issue.
- The true intention behind the remedy.
In the 16th century, judges saw the statutes as an intrusion on their domain. From their point of view, statutes add to, subtract from, or patch up the common law. The judges weighed the statute’s spirit/true intention more than its wording. Some even remodeled the statutes to fit the defects they find. Fortunately, in the modern day, judges use the mischief rule with more restraint and have greater regard for statutes. Now, judges try to discover the statute’s true meaning, whereas, in the olden days, they sought to change its meaning.
Main Difference Between Common And Statutory Law In Points
- Common law is also known as case law, whereas statutory law is known as written law.
- Statutory laws are government-made laws. On the other hand, common laws are judge-made laws.
- Common laws are not codified, whereas some statutes are codified (indexed) according to subject matter.
- A precedent ceases to be binding if it is inconsistent with a statute passed subsequently. Statutory laws do not cease to be binding unless another statute repeals them in part or whole.
- Statutory laws cannot be overruled; they can only be repealed or amended. On the other hand, a higher court can override a precedent set by a lower court. For example, the Supreme Court can overrule a precedent set by the high court.
- Common laws are more flexible than statutory laws, as they are rulings based on current situations/circumstances. As such, they are open to interpretation. On the contrary, under the literal rule, statutory laws are not open to interpretation and mean precisely what they say.
- Statutory laws are written laws, whereas common laws are unwritten laws.
Conclusion
Learning what common and statutory laws mean and the difference between them will aid people in understanding their rights better. However, the distinct line between statutory and common law is blurring due to the growing importance of statutes in common law countries and jurisprudence (similar to case law but does not have a binding effect) in civil law countries. In short, statutes are of significant importance and must be adhered to. However, they are open to interpretation (that is, meaning and intent are taken into consideration), which results in the creation of common laws.
References
- https://en.wikipedia.org/wiki/Common_law
- https://www.thoughtco.com/statutory-law-definition-and-examples-6504056
- https://courses.lumenlearning.com/suny-wmopen-introbusiness/chapter/reading-criminal-versus-civil-law/
- https://coolidgelawfirmaz.com/common-law-v-statutory-law-criminal-defense-attorney/
- https://en.wikipedia.org/wiki/Plain_meaning_rule
- https://en.wikipedia.org/wiki/Mischief_rule
- https://en.wikipedia.org/wiki/Golden_rule_(law)
