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What is the Difference between Common Law and Statutory Law?

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  • Written By: Carol Francois
  • Edited By: Bronwyn Harris
  • Last Modified Date: 25 March 2014
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There are three main differences between common law and statutory law. Common law is based on precedent, or case law. Statutory law is written law as decided by the legislature or other government agency. The main differences are how the laws are created and the basis of challenges.

Under common law, new laws are created through the decisions made by judges. When the judges are listening to a case, they are making decisions based on the decisions made in previous cases. In situations where no specific applicable law can be found, the decision the judge makes then become law.

Lawyers preparing to argue a case must make submissions to the court for decisions on different items based on case or common law and statutory laws that are applicable. If the plaintiff or the defendant decides to appeal the decision, they must make an argument to the appeals court. The submission must list the objections to the decision based on prior law or legal procedures.

Statutory laws are those made by the government of a country. There are several reasons to issue these types of law: to meet citizens needs, to formalize existing law or resolve an outstanding issue that the courts refer to the government. The government has a clear role in determining the laws and punishments that are appropriate for their country.

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Statutory laws can be issued by a variety of government agencies and their jurisdictions and effective dates can vary quite widely. In addition to laws issued by federal and state governments, cities and towns can also create their own municipal ordinances, bylaws or regulations. All these items have the power of a law. These multiple sources of legal guidelines adds to the complexity and possible conflicts within the law.

There are quite a number of countries that have a combination of statute and common law. The most important job when practicing law is to keep up to date when decisions are made that impact on your area of practice. Decisions can strike down old laws, or create possible avenues of appeal for prior cases.

The job of a legal researcher is to assist the lawyers in writing their legal arguments, basing them on a combination of case and statutory law. They must also prepare a list of possible objections or rebuttal arguments from the opposing legal team. These items, along with the details of the case, determine the legal strategy.

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Discuss this Article

anon351185
Post 8

The Constitution clearly states the courts in this land can operate only under common law jurisdiction to apply to sovereign citizens. Statutory law is not law at all, and government does not have constitutional authority to make public laws, only legislative law. Statutory is just a secret word for military martial law.

anon341344
Post 7

How will common law and statutory law influence the delivery of health care services?

anon331522
Post 6

Do not mistake common law for criminal law.

anon322258
Post 5

Just do some research on the difference between the common man and the legal person. The whole system is contrived exploitation.

chas46
Post 4

This is explained well. Although some judges just have it their way. The lawyers run their courts. I have seen it, especially in small or growing communities.

latte31
Post 3

BrickBack- I can answer them for you. A common law divorce really does not exist per se. A couple involved in a common law marriage in which their individuals states recognizes that marriage, can petition a court for the dissolution of the common law agreement.

This will allow the distribution of property in the relationship in a similar fashion that a married couple would have during a divorce.

But this is not a divorce. The debts incurred during the common-law relationship will remain in each person's individual name. The debts will not be divided evenly between the two are partners as it would in a regular divorce.

BrickBack
Post 2

SurfNturf-Can common-law relationships end in divorce?

surfNturf
Post 1

Common law marriage results after a couple that is unmarried legally lives together for a certain period of time.

There are some states that recognize common-law marriages while most do not. Washington DC, Alabama, Colorado, Iowa, Kansas, Montana, North Carolina, Texas, South Carolina, Oklahoma and Rhode Island recognize common law couples.

Usually these states consider common law couple married after living together for a period of seven consecutive years or more.

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