Philosophy of Law: Common Law vs Statute Law
George Fletcher writes that there are three components of law, and those are statutes, cases, and writings about law. Each law has a role they play in our understanding on how law legal systems operate. A statute is a written law accepted by a legislature on the state or federal level. Statutes established forth general propositions of law that courts apply to specific circumstances. A statute may prohibit a certain act, direct a certain act, make a declaration, or create forth governmental mechanisms to aid society. A statue starts as a bill proposed or supported by a legislator. If the proposal survives the legislative committee process and is acknowledged by both parties of the legislature, it will become a law when it is signed by the executive officer. When a bill becomes law, the several provisions in the bill are called statutes. The term statute indicates the advancement of a bill from legislative proposal to law. State and federal are together in statutory codes that assemble the statutes by subject. These codes are available at law libraries and are published in book form.
Lawmaking powers entrusted mainly in elected officials in the legislative branch. The entrusting of the chief lawmaking power in selected lawmakers is the essence of a representative democracy. Apart from the federal and state constitution statutes passed by elected lawmakers are the first laws to check in finding the law that involves to a case. As legislative enactments, statutory trail the usual process of legislation. A bill is presented in the legislature and chosen upon. If permitted, it passes to the executive branch (either a governor at the state level or the president at the federal level). If the executive signs the bill it passes into law as a statute. If the executive fails or declines to sign the bill, it can be rejected and sent back to the legislature. In most instances, if the legislature again permits the bill by an established margin it becomes a statute.
Statutes are not consistent and unalterable. A statute may be changed or cancelled by the lawmaking associates that proposed it, or it may be overturned by a court. A statute may delay, or dismiss, under the terms of the statute itself or under legislatives that automatically terminate statutes except if they are authorized before the given amount of time has passed.
Statutes are the main source of law, and the power to ratify statutes is reserved to elected law makers. However, judicial decisions also have the force of law. Statutes do not control every possible case, and even if a statute does control a case, the courts will still have to explain it. Judicial decisions are known collectively as case law. A judicial decision lawfully binds the parties in the case, and also may present as a law in the similar prospective sense as does a statute. In other words, a judicial decision establishes the result of the particular case, and also may control future conduct of all persons within the jurisdiction of the court.
In contrast with statues, case law is a dynamic and continually developing body of law. Each case contains apportion in which the facts of the argument are set forth as well as the holding and dictating an explanation of how the judge arrived at particular assumption. In addition, a case might contain an agree and disagree opinion of other judges. A judicial opinion may be used as an example for similar cases. This means that the judicial opinion in the case will guide the result with the same cases. With that being said, a judicial opinion can constitute the law on fixed issues within a particular jurisdiction. Courts can create law in this way when no statute exists to rule a case, or when the court interprets a statute.
For example, if a petitions court maintains that witness testimony on memory recovered through therapy is not acceptable at trial, that decision will be the rule for those who have similar cases within the appeals court’s jurisdiction. This decision will last as a law until the court changes itself or is reversed by a higher court, or until the state or federal legislature permits a statute that overrides the judicial decision. If the courts put an end to a statute and the legislature approved a similar statute, the courts may have an opportunity to announce the new statute unconstitutional. This sequence can be repeated any time if legislatures continually test the constitutional limits on their own lawmaking powers. Sometimes courts receive tasks to statutes or regulations based on constitutional grounds. Courts can create law by cancelling parts or all of a specific piece of legislation. The Supreme Court has the power to make law irrevocable to explain the state of constitution and to announce holdings that have the force of law.
Judicial opinions also provide legal authority in cases that are not through statute. Legislatures have not accepted statutes that govern every possible disagreement. In addition, the language included in statutes does not secure every possible condition. Statutes may be written in wide-ranging terms, and judicial opinions must clarify the language of applicable statutes stated by the truth of the case at hand. Regulations approved by administrative agencies also cover statutory separation, and courts are occasionally called to explain the rules as well as statutes.
Statute laws and case laws are based on the same principles of what is good and bad. The parliament and the judges always reflect the public opinion in making laws. The basic element in making a law is what the majority of people thinks. Although most legal arguments are enclosed at least in part by statutes, tort and contract disputes are exceptions, in that they are largely ruled by case law. Criminal law, tax law, patent law, bankruptcy law, and property law are amongst the parts of law that are covered first and foremost by statute.
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Common Law vs Statutes. (2010, December 18). Retrieved March 24, 2017, from https://pjcjournal.wordpress.com/common-law-vs-statutes/