The Difference Between Common Law and Statutory Law

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The laws governing a country or nation are important aspects of its existence and in a way are contributing to its history, by taking from the past and giving to the future. Common law and statutory laws are followed by most nations in the world. A combination of both is necessary for justice to be served.

At both the federal and state levels, the law of the United States can be traced back to the common law system of English law, which was in force in the American colonies during the time of the Revolutionary War. Since then, U.S. law has diverged greatly from its English roots both in terms of substance and procedure. The main departure occurred when the United States ratified the Constitution in 1789. In effect, the Constitution and federal statutes and laws made in furtherance of the Constitution were established as “the supreme Law of the Land.” From that point on, the law of the land was no longer based on legal practices in England but became distinctly American and home grown. When the individual states ratified their state constitutions, the state legislatures obtained the power to establish state law, or the “Law of the State.” Together, this collection of federal and state laws constitutes something we often refer to as the “body of law.” This body of law governs the behavior of individuals, businesses, and even governments. Just like the human body, the “body of law” is comprised of multiple parts, each performing an individual function while simultaneously working together as a whole. In this section, we will examine two of the most fundamental types of laws, followed by nearly every nation in the world: statutory law and common law.

A statute is a law passed by a legislature; and statutory law is the body of law resulting from statutes. A statute—or the statutory law—may also be referred to as legislation. One of the benefits of statutory law is that whether it’s federal or state law, it’s a written law that you can locate and read at the law library or online. This is not true of common law, which is also known as “unwritten law, because it’s not collected in a single source.

The common 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.

Many times 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.

There are 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.

Common Law

Creation of new laws: The law evolves with new decisions made by judges in courts.

Operational Level: Procedural

Also known as: Case law

Nature: Instructive

Origin: Precedent or judiciary

Common law is defined as law that has been developed on the basis of preceding rulings by judges.

Common law is also known as case law and is of two types – one where judgments passed become new laws where there are no statutes and the other where judges interpret the existing law and determines new boundaries and distinctions. Apart from common law and statutory law, there are also the regulatory laws framed by various government agencies that have the authorization to do so once statutes are created by the legislature.

Common law is based on the concept of precedence, which requires judges to decide a case based on prior rulings or, at a minimum, consider the reasoning of prior judges when deciding a case with similar facts. The constraints precedence imposes on a judge depend on court hierarchy, case relevance and jurisdiction. As outlined by the Indiana Court System, “When a decision is made by a higher court, the lower courts must follow it. Once a case is decided, it establishes a precedent, or a judicial decision that should be followed when a similar case comes to court. To serve as precedent for a pending case, a prior decision must have almost the same question of law and almost the same facts. If the precedent is from another area, such as another state’s Supreme Court, it can be considered, but it does not have to be followed.” In this way, new decisions can become a legal precedent. A binding precedent is referred to by the Latin phrase stare decisis or “let the decision stand.”

The upside of this doctrine of precedence is predictability. Melbourne Law School professor Matthew Harding summarizes the logic of this practice: “The moral value of the doctrine of precedent is in the way it serves the political ideal of the rule of law; according to that ideal, institutions of the state, like courts, should strive to ensure that the law is developed and applied in a consistent and predictable manner, so that citizens may order their affairs with confidence as to their rights and duties.”

All laws of the United States of America were founded on common law. American common law is founded on British common law. British common law dates back to the thirteenth Century and the Magna Charta, though in truth it dates back much farther. Common law dates back to the beginning of history, or at least the interaction of people with each other. Common law predates all governments and all established systems of law.

Common law is the unwritten law concerning how people relate to each other. It is the universally accepted standard for personal interaction. It may be summed up as follows: each of us is entitled to our lives, our liberty, and our property. Nobody has the right to forcibly take another’s life, liberty or property.

Throughout the millennia of rule by kings, emperors, Caesars, etc., the rulers’ positions were that the kings word was law, and nobody could contest or otherwise challenge it. In modern times, this was first opposed by the English nobility in the time of King John. The nobility’s revolt resulted in the king being forced to sign the Magna Charta, which recognized that even the king had limits on what he could do; that certain rights existed over which the king had no authority.

The Declaration of Independence further – and brilliantly – elucidated this concept, explaining that each individual had certain rights with which he was endowed by his Creator – not by the king – and that the king (or government) could never forcibly take away those rights, or restrict or control them for his own purposes.

However, neither the Magna Charta nor the Declaration of Independence – or any other document throughout history – was the source of common law. Common law predated them all.

It has been said that in today’s world common law is no longer valid. This can be no more true than the idea that pigs can fly. Common law has always existed, and it will always exist. However, modern governments have superseded common law in the most devious and sinister ways.

Under common law, your rights cannot be forcibly taken from you, not even by the king, president, Ayatollah, emperor, or any government claiming authority over large numbers of people. However, among your unalienable, Creator-endowed rights is the right to willingly waive your rights. This is what governments around the world have done; they have gotten the people to agree not to exercise their common law rights.

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Statutory Law

Creation of new laws: New laws are issued by various government agencies or by the legislature.

Operational Level: Substantive

Also known as: Written law

Nature: Prescriptive

Origin: Government or legislature

Statutory laws are written laws passed by legislature and government of a country and those which have been accepted by the society.

Statutory laws have statutes as their basis.

Unlike common law, statutory law gets its existence from some governmental body that has enacted such laws. For example, the United States federal government enacts statutory laws by Acts of Congress. Like all created entities, that which has been created is subject to the control of its creator. Since Congress created statutory law, therefore it controls statutory law, and those who are subject to it.

Statutory law are laws passed by Congress and represent one of the primary sources of law in the United States. This legislative power was established in the Constitution, which granted Congress the power to pass laws or statutes on any subject not prohibited in that document. The White House website summarizes the composition, powers and process of the legislative branch of government. To excerpt: “Established by Article I of the Constitution, the Legislative Branch consists of the House of Representatives and the Senate, which together form the United States Congress. The Constitution grants Congress the sole authority to enact legislation.”

A new statute generally starts as a proposal or “bill.” According to the GovTrack website, Congress considers around 5,000 bills and resolutions annually; only a fraction—approximately 7% or 350—become law. In order to advance, a bill must win a simple majority vote in both the House and Senate. A bill that is approved by Congress is submitted to the President for consideration. At this point, the bill is either signed and becomes a new statute—law—or is vetoed. If the President vetoes the bill, a two-thirds majority vote in both the House and Senate is required to override the veto and pass the bill. If the votes garner that support, the bill becomes law without the President’s signature.

All United States (federal) citizens are subject to statutory law, and therefore are subject to the control of Congress. These citizens are not living under common law, because they have voluntarily waived their common law rights in order to reap the benefits of being subject to statutory law.

In the United States, such benefits include Social Security, government health care, public education, small business loans, student loans, and a plethora of other so-called entitlement programs that purport to make life easier for those same citizens. But at what cost?

Did you know that when you obtained your Social Security number you agreed to waive your God-given unalienable rights under common law? Or that in order to obtain Medicare or Medicaid you must agree to not exercise those same fundamental rights? That is the sinister method that governments everywhere have used to obtain almost complete control over the population of the world.

To add insult to injury, most people would defend their participation in these government sponsored benefit programs and the abject servitude that comes with it rather than look at their own complicity in their lack of fundamental rights, and explore ways in which they can reclaim those rights.

Twentieth Century statesman Dresden James said it well, “They rattle their chains to boast of their freedom.”

You are either under common law or statutory law

You cannot be protected by common law if you are subject to statutory law. It is one or the other; you cannot enjoy both.

Any time you operate with a taxpayer identification number (TIN) of any kind (SSN, EIN, etc.) you are subject to statutory law, and have thereby waived your right to the protections of common law.

You must choose either the benefits of statutory law along with the inherent liability of having waived your fundamental rights, or the protections of common law along with the necessary consequence that you are ineligible for any government benefits.

Reclaiming Common Law Rights

Once you understand that you have voluntarily waived your rights under common law in favor of your subjection to statutory law, you are then in a position to reclaim those rights. Anything that has been waived voluntarily can be taken back. Your rights are more a part of you than your arms and legs. You can lose your arms and legs but you can never lose you Creator-endowed rights.

If you are willing to give up your eligibility for all government benefits – the cost of which are your rights – then you can take back your rights and again live under common law, which is the only avenue to a life of freedom.

If you let go of your eligibility for Social Security, government health care, public education, government loans, etc. then you can reclaim your liberty. If you use genuine common law trusts to protect your property then you can avoid the ever-present succubus of government taxes and regulations. These are available to anyone – regardless of the country in which you live – because your rights are not subject to the controls of governments or kings.

The only question you need to ask yourself is… am I willing to do whatever is necessary to reclaim my rights and freedoms? If you value liberty above all else then the answer is yes. If you don’t then you are dooming yourself and your children to a life of abject slavery to government institutions.

Brent Johnson

Brett is the Director of Freedom Bound International, a common law service center dedicated to the preservation of personal freedom, privacy rights and the Declaration of Independence.