Common Law and Statutory Law

Common Law and Statutory Law

Common law has been an accepted legal tool in England for many centuries.  The kings of England exercised justice through their advisors, who were given the right to judge each case by its own set of facts.  The council of the king did not follow the laws customarily exercised by junior courts, or lords in relation to vassals.  After all, it was the king who had the right to make a final decision about everything that came to his notice.  He could overturn the judgments of his advisors, too (“Common Law,” 2008).

     The king’s justice was not available to all until Henry II came to power.  During his reign, all English people were required to bring their land disputes to the king.  The subjects of the king were satisfied with the new rule.  Thus came into being the separate courts of the Exchequer, the King’s Bench, and Common Pleas.  The law that reigned in these courts came to be known as common law, simply because the entire kingdom was subjected to the laws that existed in the courts of the king (“Common Law”).

     In due time, the entire legal system of England became subjected to the legal tool referred to as common law, for the simple reason that the courts of England were interconnected.  Decisions made by courts of law in England were called common law.  This law differed from legislations formally enacted by the government or Parliament.  The latter came to be called statutory law (“Common Law”).

     English emigrants to America brought common law to the American colonies.  Following the American Revolution, this self same law turned out to be the foundation of the legal system of United States of America.  As a matter of fact, English common law continues to be used in the U.S.  Except for Louisiana, which was colonized by the French, all states of America have built their legal systems around the English common law.  In any case, common law in the U.S. nowadays refers to law that is established by judges through their decisions that may serve as models for court decisions in future.  Since many court decisions are applied repeatedly in courts of law, it is common law that seems to form the backbone of the American legal system.  However, common law is not considered as written in stone.  It is statutory law that continues to override common law.  After all, statutory law is law that is written after being passed by legislation.  Still, it is noteworthy that many of the statutory laws in existence in the United States today “are rooted in the common law tradition and are interpreted by judges according to this tradition (“Common Law”).”  In other words, if a judge interprets a statutory law in a certain way, and other judges agree with the interpretation, the statutory law would continue to be interpreted in that particular way in future, until and unless a judge in future decides that a different interpretation of the law is possible.  Likewise, common law may be established by a judge whose decision is repeatedly used to judge similar cases until and unless a court of law in future decides that a new law should be created to judge that particular kind of case.

     Whereas there is no hard and fast rule for the creation of common law – although this type of law is certainly not permitted to override statutory law, and is instead meant to be established with the statutory law as its backbone – the creation of statutory laws is rather complex.  The following is a detailed description of statutory law from the U.S. History Encyclopedia:

         Statutory Law, as distinguished from constitutional law and the common law, is that body

    of law laid down by a legislature.  Both the U.S. Congress and state legislatures enact statutes

    either by bill or by joint resolution.  Federal statutes take precedence over state statutes, and

    state statutes are superior to the common law.  Statutory law is inferior to constitutional law,

    and courts exercise the power of judicial review when they declare statutes unconstitutional.

    Statutory law is codified under titles describing the areas of action to which they appertain,

    and these titles are grouped together in codes.  The administrative branch of government

    enforces statutory law often through the promulgation of administrative rules and regulations

    that have the effect of law as long as they lie within the limits set by the statutes (“Statutory

    Law,” 2008).

It is obvious that statutory law takes a long time to create, seeing that a great many branches of the government are involved in its creation.  Undoubtedly, statutory law is created after a great deal of thought is put into the need for such a law, and how it may be written and later enforced.  On the contrary, common laws may be created on the whims of judges.  This is, in fact, the biggest problem that many people believe to exist with common law.  Also according to the U.S. History Encyclopedia:

         Many outside the legal system… saw the common law not as the perfection of reason but

    as the perfection of nonsense.  In speeches and newspapers, outsiders to the legal system—

    usually adherents of the Democratic Party—attacked the common law as the creation of

    judges, who were making law to protect property against democracy.  These debates occurred

    at a time when judges were using common-law doctrines to outlaw union organizing, to

    require the return of fugitive slaves, and to protect merchants and creditors at the expense of

    consumers and debtors (“Common Law”).

Of course, judges should not have the authority to change or create laws as they please.  Yet another problem with common law is that it is not written law (“Common Law”).  Thus, judges may have to force themselves to apply the decisions of the past made for cases similar to theirs, or to create new laws.  Needless to say, the very existence of common law is bound to confuse judges.  Outsiders to the legal system may further believe that the system is thoughtlessly created, simply because common law may be changed at the will of a judge.

     All the same, common law is considered positively flexible for the very same reason.  The fact that it is not written in stone makes it easy to adjust to cases that may appear similar to old ones albeit different in unique ways.  Reality is that all cases are different.  If there were a single law to judge every case of a similar nature, there may be a great deal of unchecked injustice.  The fact that common law is changeable is, in fact, an advantage of allowing common law to continue playing an important role in the legal system (“Common Law”).  After all, the ability of a judge to change an old law in order to suit the circumstances of a particular case must be applauded.  By taking time to think through a common law, judges may actually be able to better serve the societal need for justice.

     Another advantage of allowing common law to remain as an integral part of the legal system is that permission given unto judges to establish laws may benefit society if, in fact, judges decide to use “common law as a tool for social reform (“Common Law”).”  There are countless problems facing society that judges may be able to eradicate by creating common laws that are meant to do the needful.  As an example of a beneficial change that has been brought about through the lawmaking power of judges – tort laws have been expanded to “make it easier for injured parties to recover in areas from hazardous working conditions to dangerous drugs to professional malpractice (“Common Law”).”  Likewise, consumers holding little power to bargain have been protected from “unfair bargains” through changes in contract law (“Common Law”).  More power has been invested in tenants, too, thanks to the creation process of common law (“Common Law”).

     Despite the disadvantages of allowing common law to remain as a tool in the legal system of the U.S., this kind of law cannot be done away with.  Given the difficulties of creating statutory laws it is essential to allow common laws to be created by judges.  As noted previously, common laws also offer advantages that common people simply cannot expect from legislatures that are almost always difficult for them to reach.


Common Law. (2008). Answers. Retrieved Jun 5, 2008, from

Statutory Law. (2008). Answers. Retrieved Jun 5, 2008, from