law differs from statutory law because it is mainly based on precedent.
Statutory law is a more formal body of the legal system that consists of
written legislation. This legislation will mainly be based on rules and
regulations either mandating or prohibiting certain behaviors of the general
public. Common law, on the other hand, will allow judges to decide cases based
on the rulings of prior cases with similar circumstances.
statutory law can be interpreted differently by different people. This is why
making rulings based on precedent in common law systems can be beneficial when
the meaning of a law is disputed. When the facts of a case are unique and there
is no binding precedent, these are called cases of first impression. In this
case, a judge’s decision will essentially form law and subsequent cases will be
ruled in a similar way.
The main differentiation between common law and
statutory law is the way in which the laws are created. As stated above, common
law comes from precedent. Statutory law is made by the Government. It is
designed to keep citizens safe as well as ensure that citizens are able to
function in everyday life. If there is an issue before the court that
absolutely cannot be decided by precedent or a judge’s decision, the court may
turn to statutory law to decide the case. When a statutory law is broken by a
citizen, the Government will have a predetermined punishment that is in
proportion to the nature of the crime.
many different types of Government agencies that are able to issue statutory
law. Many times, a judge’s decision will be based on a combination of statutory
law and common law. This means judges will incorporate both written statutes
and case precedent when issuing a ruling. It is important for both judges and
attorneys to be aware of recent changes in statutory law and relevant court
decisions that will affect common law.
Most of the time, the areas of contract law, tort
law, and property law exist within common law, not statutory law. Although
there may be some written statutes in these areas, most of the time a judge’s
decision will be based on precedent. Statutory law will give only a rigid,
formal interpretation of the law. It does not always apply easily to all
situations. This is why it is beneficial for judges to refer to prior cases,
rather than legislation. Many times, a precedent will be identified and then
applied to the case at hand through analogy.
is a system of precedence-based rulings that is used to decide cases brought
before a judge. Common law precedent can be used in combination with statutes
to decide cases with similar circumstances or to decide cases that are not
covered under existing legislation. This process is called stare decisis, which in Latin means
“let the decision stand”.
precedent is used to ensure the fairness of the legal system by treating all
cases with similar facts in the same way. Many times the written law can be
interpreted differently by different individuals. Common law systems also allow
for fairness by prohibiting most bias and different interpretations by judges.
As long as decisions are based on precedent, then citizens will generally be
treated fairly by the legal system. Sometimes a precedent can be overruled.
However, this will generally not be done unless the judge has grounds for doing
Many countries employ a common law system based on
precedent. The common law originated in England after the Norman Conquest,
which is why most countries that have roots in English heritage will use the
common law, as opposed to a civil law system. Countries that employ a common
law system include the United States, Ireland, India, Canada, and South Africa.
In civil law countries, court decisions will be mostly based on written
statutes that are developed by legislation.
that utilize a common law system will employ an adversarial system in court
cases. This means that each party will be accompanied by an advocate that will
represent the interests of that party. In this case, there will be a group of
impartial observers that will decide the outcome of the case. This refers to
the judge and the jury. This is in opposition to an inquisitorial system that
some civil law countries employ. In this type of system, a judge or group of
judges will investigate the facts of the case in order to make a decision.
The common law is based on precedent which is why
it is usually more predictable than other types of systems. Based on the
rulings of prior cases, a plaintiff or defendant is able to generally assume
what will happen in their case. Procedural fairness is an issue in common law
that attempts to ensure that all procedures are followed correctly in order to
provide fairness to every party in a court case.
two major rules of procedural fairness in common law jurisdictions. First, the
judge must offer a fair trial to all parties before the court. Secondly, the
judge must not be biased in any way. If a judge does not offer procedural
fairness, then the decision of the court can be overruled under common law.
refers to a legal system that is formed based on the prior decisions of judges
in court cases. The basis for this type of decision-making is that cases with
similar circumstances should be ruled in a similar manner. By deciding a court
case, the judge forms precedent by which all other similar cases will be
is used in many countries as opposed to legislative law, which makes decisions
based on written laws and regulations. There is a system of judgments in common
law, in which decisions that are made by higher, appellate courts will set the
precedent for lower courts. However, decisions that are held in lower courts
will not usually be binding upon higher courts.
of common law is thought to begin in England during the Middle Ages. Now there
are a large number of nations that employ a common law system. Most often it is
countries that originated from English customs that will continue to utilize
the common law. This includes the United States.
The term common law originated in England in the
11th Century when the King employed several judges who would travel from
jurisdiction to jurisdiction to make rulings in court. During this time there
were many different sections of the kingdom that would employ their own local
law. The King attempted to unify these laws and they used the phrase common law
to indicate those laws that were common among all the jurisdictions.
Conquest of 1066 was when the common law really began to take over in England.
This is when the concept of the inquisition was integrated into the court
system. This means that the judges no longer acted as an impartial mediator,
but instead began to investigate the facts of the case and make an informed
judgment. It was also during this time that all judgments began to be recorded
in written form. This helped develop the concept of precedent.
King Henry II began to rule England in 1154, and
it was around this time that common law became the norm throughout the kingdom.
Henry II began to abolish local laws and customs and replaced them with a
national system. It was also during this time that juries began to be sworn by
an oath and used to decide court cases. This was true for both civil cases and
dispute would arise in the local courts, Henry II sent his traveling judges to
hear the case. When the judges returned back to London after hearing local
cases, this was when the judges’ decisions would be discussed and recorded.
Today, having a system based on common law is very beneficial in some cases.
This is because it ensures that the facts of a case will not be treated differently
at different times.
concept of common law is that it is developed on a decision-based, case-by-case
basis. This means that common law is an ever evolving area of the legal system
because new cases are always being decided. Based on this aspect, common law
differentiates from statutory law. Statutory laws are not generally subject to
change based on rulings. These laws will be more solid.
common law systems are able to reinterpret certain laws in order to reflect
changes in society. However, these changes will not generally come in a drastic
form, but are instead gradually made over a period of time. When changes are
made to statutory laws, it will normally come in a more abrupt manner than
common law evolution.
of this type of change is the evolution of liability for negligence in common
law. Historically, a third party would not be able to collect for negligence,
even if the defendant’s actions harmed the plaintiff. Through a series of court
decisions, this was changed. The evolution of the common law allows for
corrections to be made when the legal system is not operating correctly.
Most of the time, when making important decisions
judges will reference previous cases that have similar circumstances. The
theory is that if that another case with similar circumstances was ruled in a
certain way, this should remain consistent for all subsequent cases. When
judges rule on a case where there is little or no precedent, this is often
called a case of first impression. This means that a judge can reference prior
court cases, but there is no case that exists with the same circumstances and
there is, therefore, no precedent. This means that the judge is in a sense
responsible for making laws. As a result of the judgment on this case of first
impression, all subsequent court cases will be ruled in a similar manner. This
ensures a certain stability in the legal system.
Common law systems may give a considerable amount
of authority to judges when decisions are made. However, because these
decisions are based on prior decisions, judges must abide by binding precedent.
This attempts to avoid any bias or corruption on the part of judges. A judge
will always write a legal opinion when making a major decision in a common law
opinion is a written publication that will explain a judge’s ruling. It is in
the legal opinion that judges will reference what precedents were used to form
the decision. This ensures that a ruling was issued on legitimate terms, and
the judge is able to reference similar situations where this ruling was held.