The difference between "Common" Law and "Statute" Law to a lay person.

Factual Questions
1

From another thread, UDS posts a comment regarding common law versus statute law:

[sub]The parts that jump out to me bolded by me, Tripler[/sub]

Sit down, 'cause this is gonna be a bumpy ride down memory lane (and I am not a lawyer). . .

If I understand history correctly, “Common Law” was precedent, tradition, and historical findings established by judges, starting in Roman times, before legislatures became a thing. Because the Romans never really codified statutes, they established traditions became “common” to all judicial courts. “Statutory” law, came later, when legistlatures began enacting laws to proscribe activities as either legal or illegal. Since we have the body of tradition and history, we still use “common law” as a foundation, but apply statutory law when it exists.

Do I have this correct, or at least the jist of it correct? For a historically-minded guy, who doesn’t happen to be a lawyer, what is the main difference between “common” law and “statutory” law?

Tripler
I do not need an answer fast.

2

You’ve got it right, with a few quibbles.

“Common law” in the English context means law determined by the courts. Doesn’t date back to the Romans, but more to around the reign of Henry II as the starting point.

It is literally judge-made law. The English judges gradually evolved the common law through their decisions, based originally in Anglo-Saxon customary law and Norman feudal law.

The key point about this system is that the law is literally made by the judges. For example, England still has common law offences. There is no statute which creates certain crimes, such as murder. The offence of murder has been defined by the courts.

However, Parliament has the power to pass statutes that change or replace the law set out by the judges. For example, murder was originally a capital offence. Parliament has abolished the death penalty for murder.

In the context of the succession to the Crown, the common law rule for succession to titles, just like real estate, was that it went to the oldest son. If the oldest son predeceased Dad, but left issue, it went to the oldest son’s oldest son. If the oldest son died without heirs, son #2 moved up to become the heir.

Parliament in the late Stuart period held that it could change the law governing succession to the throne and did so, in two different statutes, the Bill of Rights and the Act of settlement. They didn’t change the general common law rules of succession, but simply re-defined who would be the monarch. The Act of Settlement provided that when Queen Anne died, her heir was her distant cousin, Sophia of Hanover, and then Sophia’s legitimate issue, being Protestant.

But Sophia died before Anne. Did that cause problems? No, because the Act said it Crown would descend to her issue. The common law rules kicked in: Sophia’s heir was her eldest son, George of Hanover, who became King. And then when he died, it went to his eldest son, and so on.

The statute changed the line of succession, but since then, the common law rules have determined who is the heir.

3

IANotEvenALawyer, and I can tell you that the Romans did in fact have a legislature (who was the legislature changed through time along with the rest of the government system) and a pile of written laws.

Civil Law, used among others in Italy, France or Spain, is more closely linked to Roman Law than the Common Law system: partly this is through direct evolution, partly because any time we’ve had lawyers who could read, one of the things they’d read was Roman laws.

In the Spanish legal system (any of its branches: civil, criminal, family…), when judicial decisions involve a change in the interpretation of the law, the statute itself is updated to reflect this: lawyers only use precedent as a reference when it’s been consistent since the last update to whatever law is involved; in that case, they may provide clients with a particularly well-written judicial decision as a reference that’s easier to understand than the law it’s about. For example, right now (and I’m talking as in, the last week!) there has been a Supreme Court decision changing how the division between “sexual assault”, “sexual abuse” and “rape” was interpreted, and that means the sexual-crimes chapter of the Criminal Code is going to get a redo.

4

Ah, but even in the civil law system, there was a similar period of judge-made law.

There were the 12 Tables, which apparently set out some rules of Roman law, but there wasn’t much by way of statutes. Instead, there were customary practices, which started to become the equivalent of customary law.

Gradually, there were individuals who were skilled in the customary Roman law, who gave their opinions, sometimes individually, sometimes as a group, to individuals who had a dispute.

Over a few centuries, those opinions became the basis for Roman law. They eventually were written down on the direction of Justinian, and that complex of written laws, customary laws and opinions became the basis for Roman law studied in the Italian universities at the beginning of the Renaissance. Padua in particular was one of the most important universities studying the re-discovered Roman law.

And statutory law didn’t happen overnight. For example, in France, there were a number of different regional bodies of customary law. The “coûtume de Paris” was particularly influential (it became the basis for Quebec’s variant of civil law), but the legal principles varied depending on where you went in France.

That all got swept away by the Revolution. The idea of France as a single nation took hold, and unification of the law was a natural result, just like the metric system replaced all the regional systems of weights and measures.

That’s the origin of the Civil Code, compiled on the direction of Napoleon.

Another key part of the Enlightenment was the idea that criminal law should be written down and defined by the Legislature, not left to judges and case law. That resulted in the French penal code, replacing all the judge-made and customary offences.

The French legal innovations in turn became part of the revolutionary ideology which the French exported to continental Europe, so written civil codes and penal codes became part of the European civil law tradition.

Note that England never joined in that revolutionary impulse, and thus still has judge-made law and common law offences.

5

The Romans had proper written laws ever since the Twelve Tables in the mid-5th century BC.

Arguably the greatest achievement and legacy of ancient Rome is its system of law, which has influenced all Western legal systems ever since, even common law.

The desire for justice, fairness, and legal process was deeply rooted in Roman culture.

Most of the principles of a fair trial that we now take for granted were first systematically laid down in ancient Rome, not Greece, or Judea, or Persia, or anywhere else:

[ul][li]Judgements to be made on the basis of written laws and precedents rather than arbitrarily.[/li][li]All courts open to the public.[/li][li]An impartial judge.[/li][li]The right of the accused to know the charges against him and to defend himself publicly.[/li][li]The right of both sides to be fully heard.[/li][/ul]
There was a long line of distinguished Roman jurists over many centuries, who wrote about and debated the law in fine detail. This culminated in the Corpus Iuris Civilis of Justinian.
*“Iustitia est constans et perpetua voluntas ius suum cuique tribuendi. Iuris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere.”
  — Ulpian
*
“Justice is the steadfast and perpetual determination to give to each person what is rightly due to him. The principles of justice are these: To live with integrity, to do no harm to others, to give to each his due.”
  — Ulpian
About Ulpian (c. 170 - 223 AD) from wikipedia:

6

I am going to jump in and make clear that Roman Law was NOT “common law” in any way, shape, or form. Roman Law was always a form of codified rules. At different times, those basic codified rules might be expounded upon by the court system. But starting with the Twelve Tables in the early years of the Republic, codes were the underlying basis for all Roman judicial decisions. The law was repeatedly re-codified through the centuries, the last such codification that applied to the Empire being the Corpus Juris Civilis of Justinian. Roman Catholic Church law was based upon Roman Law, and as a result, most Western and Central European legal systems are based upon codified law, rather than common law.

England was different, because the Anglo-Saxon kingdom had a rich set of laws already in place at the time of the Norman invasion. Some of English “common” law was influenced by Roman Law (England was, of course, an old Roman colony). But English courts were not bound by old codices of such law.

There are still in the US some examples of old English common law. For example, there are still some states that allow for “common law marriage”. Under old English common law, two people who acted as if they were married were considered legally married (in basic principle; let’s not get into a big quibble about the validity of this statement and the exceptions, etc., please!). As the Roman Catholic Church tried to gain control over as much of the legal workings of its member countries as it could, it slowly but surely tried to make such marriages subject to official church recognition. By the mid-1700s, England officially ended such marriages in England (part of the continued battle between the Church of England and the Catholic Church, etc.). But they still existed in Scotland, and in the American colonies.

That possibility of marriage has remained intact in 8 states plus the District of Columbia. I live in one of those states (South Carolina). Of course, the process and the effects have been codified, so strictly speaking, to call it “common law” marriage is a bit of a misnomer. But the point is that it has existed from before the establishment of marriage by code, and is only modified by codes.

ETA: of course, as I typed, others also made similar points. :smiley:

7

I’m pretty sure there are no states left with true common law marriage; they’ve all been codified by statute somehow. Adverse possession is an example of another common law rule that has been more narrowly specified by statute pretty much everywhere.

8

There were other evolutions in other places, it’s not as if French Law was the alpha and omega of legal systems all through Europe. And you say “France” as if the domains of, say, François I, had been born of whole cloth, rather than put together piecemeal during a thousand years: a big reason there were many different legal traditions in “France” is precisely that it wasn’t born a single domain.

For example, Navarre’s Old Fuero (Old Legal System) was compiled in the 13th century by, yes, a Frenchman, but one who was no vassal of Paris: Teobaldo I de Champaña, who had been very surprised when he asked for our “Book of Laws” and been told we had none (at that time, Champagne bloody well did and he’d studied it thoroughly). We had Parliament Minutes (where “Parliament” doesn’t refer to an elected body, but to a “come all” meeting which could last between days and months), we had specific Fueros granted by the Crown regarding specific taxation privileges, family law was considered a religious matter so each religion had their own law books about it, but for issues other than taxation and family law there were a lot of parallel collections of oral precedent. The Fuero Viejo covered all this areas of law: criminal, economic… turning the precedents into written law. Both Champagne and the Low Navarre eventually and at different times became part of France. Meanwhile in León, the legal system was a mixture of Roman and Wisigoth; in the Muslim Taifas, the legal system derived from that of the Caliphate of Córdoba and this from that of the Caliphate of Damascus, with its own add-ons and reforms…

9

Here’s the Wikipedia page on common-law marriage in the US. Among the few that still allow it in some form, it appears some have been codified. But there are states where there is some uncertainty as to whether it is allowed. Something that wouldn’t happen if there was a relevant statute to cite.

In D.C. it appears that common-law marriages were officially determined legal in 1931 via a court ruling, not legislation. (OTOH, not a state.)

10

“Common law” in the Anglo-Wmerican legal tradition has three common meanings:

  1. “Common law” (also known as precedential, or decisional, or black-letter law) judge-made law, as opposed to “statutory law” (also known as code or codified law), which is legislature-made law, and “administrative law” (or regulatory law), which is executive-made law.

  2. “Common law,” as in the Anglo-American legal structure, as opposed to “civil law,” a structure based on the Napoleonic code, which theoretically gives much less respect to judicial interpretation. Louisiana and Puerto Rico have civil law systems instead of common law systems.

  3. “Common law,” or “law,” as opposed to “equity” (also called equity law or chancery law), a parallel legal system that is mostly, but not entirely merged. Law is based mostly on the use of damages (money) as a remedy, and equity is based mostly on the use of injunctions (an order to do something or refrain from doing something). The U.S. Constitution’s Seventh Amendment right to a jury trial in non-criminal cases turns on the distinction between law and equity. Some states still have separate Chancery/Equity courts. (All federal courts are courts of both law and equity.)

11

Interesting! Thanks

Is Delaware the only one left? I thought every other state had merged their equity courts long ago.

12

Funny, I could have sworn I said exactly that. :dubious:

13

Traditionaly, countries with “civil” systems were also “inquisitorial”. Puerto Rico and Lousiana are both systems that have moved from inquisitorial to adversial systems: I understand the South America generally is tending in the same direction. In the USA, I think that Martial Law courts and Grand Juries are still inquisitorial in nature.

14

Tennessee Chancery Courts — http://www.tsc.state.tn.us/courts/circuit-criminal-chancery-courts/about

15

Quebec’s civil code is still based on the old Roman code since Quebec was ceded to Britain before Napoleon but allowed to keep its civil code. So there was no common-law marriage, but now, by statue, there is a status “equivalent to married” that has the effect.

16

But how could** friedo** turn it into billable hours without also saying it? I thought all Esqs knew that.

17

That’s not quite right. The Civil Code of Lower Canada, 1866, was based on the customary law of Paris, the coûtume de Paris, as mentioned earlier, not directly on Roman law. The customary law of Paris was heavily influenced by Roman law, but was not codified and included components of Frankish customary law that had been continued since the earliest times of Frankish settlement.

The current Civil Code of Québec is a modernised version of the 1866 Code.

18

This thread is fascinating. I’m glad I asked!

So, if I may repeat what I think I’m understanding, the Romans developed “Roman Law” which codified rules and basic principles for conducting proceedings, evidence gathering, trials. . . basically the procedural concepts, as GreenWyvern and DSY describe. The Anglo-Saxons and French procedural systems were influenced by Roman Law, but each ‘tribe’ developed their own penal and civil codes through judge-written ‘common law’[sup]1[/sup] This ‘common law’ as Ascenray and Nava discuss are the initial evolutions of what would later become ‘statutory’ law, correct? (It blows my mind that for the thousands of years Britain/England has been around, there is still no statute that defines “murder.”

I’m going to extrapolate what I think I understand to a more local situation; I live in the Southwest US. Local Native Americans had tribes, which developed their own sense of right and wrong. When someone was injured (either through a tort or physical injury), they could go to their Tribal authorities which would adjudicate things. The authorities (could be the Tribal leader, or a panel) would then apply their concept of ‘common law’–even thought it may not be explicitly written down–and write the law based on the facts of the case. Of course, the Hopi/Anasazi didn’t have the benefit of the influence of Roman procedural law, but if I change names. . . do I have the basic jist of the concepts?

What’s the difference between “inquisitorial” and “adversarial”? Does it have to do with the way crimes are investigated and prosecuted?

[sup]1[/sup]: I’m using the lower-case “c” to disambiguate each regions’ common law from the Anglo-Saxon concept and title of “Common Law.”

Later on in this thread, I want to ask about Middle-Eastern/Far-Eastern legal structure, but I’m suspecting that may be an entirely new thread. I should understand what you guys are talking about first. . .

Tripler
Fascinating stuff. Still do not need an answer fast.

19

In the American adversarial system, it is the responsibility of the two opposing sides to investigate, argue, present evidence, call and question witnesses, etc. the judge’s role is to make sure that rules and procedures are followed.

In an inquisitorial system, such as in France, the judge or the panel of judges are ēmselves independent seekers of the truth. The can have their own investigatorial staff, call witnesses, and take an active role. They’re not just enforcers of the rules, but active seekers of the truth.
If one of the sides in an adversarial system makes a mistake, or misses a good argument or line of questioning, the judge just keeps quiet. It’s the responsibility of each side to put forth its best case.

In an inquisitorial system, the judge doesn’t let that go. If ē realizes something has been missed or overlooked, ē ēmself will pursue the point actively.

20

In an inquisitorial system, the judiciary is more active in investigating an alleged crime, and also in conducting the trial. For example, in France, there is a position of juge d’instruction, who is part of the judiciary and whose function is to conduct part of the investigation into an alleged crime. At the trial, before different judges, the judge has considerable leeway in directing the course of the trial, the evidence, and the questioning. Lawyers take more direction from the judge in how to conduct the trial.

The adversarial system is the English system, which they exported to all their colonies, including the United States. The judge does not play a role in the investigation of potential crimes, and is much more passive in the trial process. The lawyers for each side decide what witnesses to call, what questions to ask, and have a very strong role in cross-examining the opponent’s witnesses. The judge presides over the trial and has a very strong role in procedural fairness, evidentiary rulings, and similar matters, but not the choice of the substantive content of the evidence.