What is the difference between customary law and statutory law

This article is longer than previous Readings, but don't let this daunt you. You will be familiar with the ideas which are discussed in the Reading. Exercise 1 then asks you to apply your understanding and knowledge of the common law and summarise the importance of the common law system being both flexible and certain. It is about being able to give reasons for a viewpoint you have arrived at. Now click here [ Tip: hold Ctrl and click a link to open it in a new tab. Explain why there is a need for a balance between certainty and flexibility in common law.

Certainty is needed to allow people to plan their behaviour and to allow lawyers to advise their clients. Thus, in the House of Lords did not change the doli incapax rule concerning the criminal liability of children. Also, in the case of the soldier Private Clegg, in the Lords declined to make any changes to the law of self-defence. Therefore, the legal system needs to balance these two competing, but equally legitimate, aims. The common law must be flexible in order to respond to changing times.

For example, in R v R , the House of Lords saw fit to abolish the then year-old rule against a charge of marital rape. Having considered why certainty and flexibility are important, please now describe how certainty and flexibility are introduced into the common law system. Overruling — where higher courts can overrule lower courts in circumstances where the later court thinks that the earlier court gave an erroneous analysis.

Distinguishing — where a lower court is able to point to material differences that justify the application of different principles. Departing — where, in certain circumstances, a court can depart from its own previous decision. Until the House of Lords was bound by its own decisions.

In , the Lord Chancellor issued a Practice statement which stated that the House of Lords may depart from its own previous decision where it is right to do so. The reasons given were to avoid injustice and restrictions on the proper development of the law.

Ltd is established. In criminal cases the Court of Appeal may depart from a previous decision if to follow it would lead to an obvious injustice. Again based upon your knowledge and understanding of this course, summarise the advantages and disadvantages of a system of precedent.

You should take some time to revise the notes you made from the previous activities, and perhaps reread part of the course. The certainty of precedent is tempered by the flexibility judges have to not follow previous cases.

Precedent is more practical — the law can modernise without the need for Parliament to enact new laws. Making the decision to study can be a big step, which is why you'll want a trusted University. Take a look at all Open University courses. British traditions such as the monarchy were rejected by the U.

Constitution, but many British common law traditions such as habeas corpus, jury trials, and various other civil liberties were adopted in the United States. It should be also added, that under the doctrine of reception, if a colonized territory has a pre-existing legal system, the native law would apply effectively a dorm of indirect rule until formally superseded by the English law, through Royal Prerogative subjected to the Westminster Parliament.

Significant elements of British common law prior to still remain in effect in many jurisdictions in the United States, because they never been rejected by American courts of legislatures. Leave a Comment. Save my name, email, and website in this browser for the next time I comment. O nas. From the blog. Contact us. Zostaw to pole puste. Napisz do nas! Start typing and press Enter to search. This website uses cookies to improve your experience. We'll assume you're ok with this, but you can opt-out if you wish.

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Necessary Necessary. Necessary cookies are absolutely essential for the website to function properly. Common Law vs. Statutory Law. New laws are issued by various government agencies. Definitions Common law is defined as law that has been developed on the basis of preceding rulings by judges. Basis for common law and statutory law Common law is by far and wide based on judgments made in the past over hundreds of years. Decisions and New Laws A judge refers to similar cases in the past and uses the judgments rendered then as a basis for deciding the current case.

Legal Process Determination of common law for a particular case is a process that begins with research analysis, location of previous relevant cases, extraction of statements and sentences passed in order to finally determine the common law applicable. Follow Share Cite Authors. Comments: Common Law vs Statutory Law. Related Comparisons. Contribute to Diffen Edit or create new comparisons in your area of expertise. Log in ».