Common Law 101: What Is Common Law & Why Is It Important?
by Topher Penrod
Common Law (Also known as Case Law), originates from custom and judicial precedent; it is an unwritten set of laws based on legal precedents established by the courts over the course of hundreds of years.
Statutory Laws are written laws passed by a body of legislature. For Example: A bill that moves through the House of Representatives, then to the Senate, and finally arriving at the President’s desk where they either sign the bill, making it a statutory law or use their veto power to kill it.
An Example of Statutory Law: Speed Limits in School Zones.
If you drive faster than the posted speed limit in a school zone, you are in violation of a statutory law that was passed by a body of legislature, such as the city or state government where you reside.
A Familiar Example of Common Law: Doctor-Patient Confidentiality.
Your state of health, treatment, medical opinions and medical records are kept confidential. A doctor has no right to disseminate your information to anyone but you without your express permission.
Common Law relies on previous rulings from judges that dealt with similar cases. Those rulings span hundreds of years and potentially thousands of cases. Courts cite Stare Decisis which is Latin for, “to stand by things decided.” Stare Decisis creates a predictable, legal stability that prevents courts from continuously needing to reassess the legal foundation of their past rulings.
Courts seldom overturn precedent and when they do, it is under extreme scrutiny. The fact that Common Law is established over hundreds of years and thousands of cases means that it is typically not subject to the political whims/corruption of whichever legislatures happen to be in power today.
The difference between the two is quite important. Statutory Law can change, sometimes abruptly, based on the decisions of the legislature and societal preference. Statutory Law is also much more susceptible to internal corruption and changes in legislation based on political whims.
Common Law tends to be informative and better protects individuals and their personal freedoms. Common Law allows for a case-by-case approach to law, where the Judge has a certain level of discretion available to them in determining which precedents apply and how the case is decided.
Statutory law is prescriptive and is designed to protect communities and/or society at large, reducing emphasis on the individual. Statutory Law is oftentimes very rigid, necessitating that a judge follows codified, general principles rather than their own discretion.
Both approaches to law have their place and serve their function. There are pros and cons to both sides. But consider which path you would prefer to take. Is individual responsibility more important than societal responsibility? Are they mutually exclusive? Which has the potential for more corruption?