In Australia and other common law counties, there are two main sources of legal decisions namely the judicial decisions (common law) and legislation acts (statutory law) (Ponzetto and Fernandez, 2008). In terms of common law, this type of law (rule system) is derived from English law. Common law, also known as case law, is based on the courts’ decisions for cases that cannot be handled under statutory law. These decisions depend on previous cases (precedents) in order to clarify the Parliament Act (statutory law). After making these decisions, they will be commonly considered as law, which means they will form part of the common law for similar cases in the future. This paper defines and explains common law and makes a comparison between common law and statutory law. The paper also briefly compares town planning legislation with the common law action for nuisance.
Common law can be defined as a statute legislation interpretation by using precedents. Victoria Law Foundation (2011) defines common law as a “judges made law”, which can be used by the courts when the law created by Parliament (statutory law) is unclear on certain legal aspects or has several meanings to a specific case. Therefore, the judges’ decision plays an important role in the interpretation and clarification of legislation. Moreover, in terms of new issues, the courts can make a verdict by basing them on similar cases in another common law country and after they apply the decision in that case it becomes part of their case law (Nettheim, 2010). The Australian court, for example, can use a case from New Zealand to make a decision, and then it becomes part of the Australian common law, even though the material is from another common law country. Additionally, Nettheim (2010) states that courts cannot just use the law created by them, they will also apply precedents from the higher courts in the same system. Hence, courts in the same system collaborate in order to develop the common law. Furthermore, statutory law can also be interpreted through various common law approaches, these include the literal, the mischief, and the golden rule approaches.
Common Law and Statutory Law
The common law and the statutory law are the main types of legal systems in common law nations such as England, Australia and, New Zealand, these two forms of legal systems have some similarities and differences. First of all, both the common law and the statutory law aim to control societies and individual behavior. In addition, they can be considered as part of the main features for the preservation of a legal system. Moreover, the common law and the statutory law are effective elements in providing sufficient protection for basic rights for individuals, families, and properties. Additionally, both of them provide a control system for not just societies but also for official actions. Therefore, the common law and the statutory law are very essential components of the legal system in common law nations.
Statutory law and common law have several aspects in which they differ. First of all, statutory law is made by Parliament. In other words, the statutory law is mainly drawn from the Acts of Parliament (Nettheim, 2010). In contrast, common law is created by judicial decisions and the main source of common law is precedents or previous cases. Moreover, statutory law is a written law whereas common law is typically an oral action depending on the judges’ decision. The purpose of both the statutory law and the common law is also different. While the former aims to create legislation, regulation, and rules that govern society, the common law aims to interpret the statutory law (Hayes, 2007). Moreover, the statutory law can change the common law, whereas the common law (the case law) should be compatible and relevant to the statutory law. And in reference to the common law, the courts make their decisions depending on the cases presented before, whereas in the statutory law Parliament makes legislation in order to deal with any issues in the future, which means legislation should not leave any possibility for uncovered issues. Furthermore, adherence to the law seems to be another difference between these two sources of law. Hayes (2007) states that obeying the common law is compulsory, however, adherence to laws made by Parliament (statutory law) is voluntary. The reason behind this difference is that Parliament is elected by the people, however, the judges are not elected by the same people and therefore are not representative of the society. Because of this, the Government can be changed during an election while judges are usually not changed except in special circumstances. Therefore, Parliament might be affected by the electorate whereas the courts are independent and their decisions cannot be influenced.
Turning to operation the al level, the common law is dissimilar to the statutory law. Indeed, the former is procedural, the latter is substitutive. Hayes (2007) states that the statutory law can be made to favor one section of society over others whereas the common law treats all members of the society equally. And when the statutory law and common law conflict, the former will prevail to the extent of the conflict. Flexibility is yet another source of difference between the two legal types. The common law is more flexible than statutory legislation. Anderlini et al (2008, pp. 26-34) assert that the flexibility in the common law is greater while the statutory law made by legislatures lacks flexibility. Based on previous cases, investigating the current situation and attempting to interpret the statutory law before the decision has been given can be considered as the key reasons for the flexibility of the common law besides the possibility of change. Even though statutory law is not as flexible as common law, it is more democratic. According to Ponzetto and Fernandez (2008, p.411), pressure from powerful litigants may affect the decisions of individual judges, however, the statutory law has a more democratic representation.
In aspects of various sectors of the economy the and where whether the common law or the statutory law is expected to dominate, there seems to be a difference. While the common law is expected to dominate in highly dynamic sectors such as information technology and finance, the statutory law dominates slow-paced sectors such as ownership rights and agriculture (Anderlini et al, 2008, p. 34). In terms of problem investigation, statutory law can investigate social problems more effectively than common law. This is because legislation has more sufficient elements, for example, there are several techniques and availability of personnel allowing Parliament to deal with the problems, unlike the courts. According to Ponzetto and Fernandez (2008), the verdicts provided by the common law are better than those given by statutory law in the long term because of the common law improvement, the statutory law provides more certainty in the short term. Additionally, Leoni (1961, cited in Ponzetto and Fernandez, 2008, p.382) stated that the common law is better in the long run because it changes gradually. Accordingly, reforming laws in the legislation is not as restricted as in the common law, which can only be modified by existing principles. Moreover, unlike statutory law the common law might have time-inconsistency, which can exist when the courts attempt to give their decision about the current situation. Hence, the judges play an important role in creating time-inconsistency by their ex-post decision unlike Parliament rules that are considered as ex-ante (Anderlini et al, 2011).
Town Planning Legislation with Common Law Action for Nuisance
Turning to the comparison between town planning legislation and the common law action for nuisance, there are several aspects. Firstly, there are two sorts of nuisance, namely, the common law nuisance and the statutory nuisance, which involves legislation actions. According to Reigate and Banstead Borough Council (2010), the common law action of nuisance mainly with its property from any unreasonable interference whereas the statutory nuisance is related to environmental and health protection. Additionally, town planning legislation has many rules for controlling nuisance. Tromans (1995, p.494) reported that town planning legislation provides environmental protection by controlling land use and planning permission for nuisance. For instance, the legislation controls industrial areas to ensure that the environment and public health would not be affected negatively. Moreover, in aspects of the common law action of nuisance, the person suffering from the nuisance must take action, in the legislation, local authority and the person can take the action (Reigate and Banstead Borough Council, 2010).
In conclusion, it is seen that both the common law and the statutory law have formed legal systems in the common law countries. On one hand, both of them are considered the main sources of the legal system, aiming to control society and individuals’ behavior, and providing protection for individuals, families, basic freedom and property ownership. On the other hand, source purpose, flexibility, sectors dominations, ability to change and time-consistency are part of the main differences between the two sources of law. In terms of the comparison between town planning legislation and the common law action for nuisance, the former protects the environment and health while the latter provide protection for property.
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