Table 2 below summarizes some of the key differences in the application of criminal and civil law. Common law consists of decisions by courts judicial decisions that do not involve interpretation of statutes, regulations, treaties, or the Constitution.
Courts make such interpretations, but many cases are decided where there is no statutory or other codified law or regulation to be interpreted. For example, a state court deciding what kinds of witnesses are required for a valid will in the absence of a rule from a statute is making common law.
United States law comes primarily from the tradition of English common law. English common law was a system that gave written judicial decisions the force of law throughout the country. Thus if an English court delivered an opinion as to what constituted the common-law crime of burglary, other courts would stick to that decision, so that a common body of law developed throughout the country. Common law is essentially shorthand for the notion that a common body of law, based on past written decisions, is desirable and necessary.
In England and in the laws of the original thirteen states, common-law decisions defined crimes such as arson, burglary, homicide, and robbery. As time went on, US state legislatures either adopted or modified common-law definitions of most crimes by putting them in the form of codes or statutes. This legislative ability—to modify or change common law into judicial law—points to an important phenomenon: the priority of statutory law over common law.
Another source of law is statutory law. While the Constitution applies to government action, statutes apply to and regulate individual or private action. A statute is a written and published law that can be enacted in one of two ways. Most statutes are written and voted into law by the legislative branch of government. This is simply a group of individuals elected for this purpose.
The US legislative branch is Congress, and Congress votes federal statutes into law. Every state has a legislative branch as well, called a state legislature, and a state legislature votes state statutes into law.
Often, states codify their criminal statutes into a penal code. State citizens can also vote state statutes into law. Although a state legislature adopts most state statutes, citizens voting on a ballot can enact some very important statutes. An important fact to note is that Statutory law is inferior to constitutional law, which means that a statute cannot conflict with or attempt to supersede constitutional rights. If a conflict exists between constitutional and statutory law, the courts must resolve the conflict.
Courts can invalidate unconstitutional statutes pursuant to their power of judicial review. Skip to main content. Module: Legal Environment. Search for:. Civil Law Assault and battery may also be a matter of civil law —law governing disputes between private parties again, individuals or organizations.
Table 1. Kubasek, Bartley A. Brennan, and M. Table 2. Common Law Common law consists of decisions by courts judicial decisions that do not involve interpretation of statutes, regulations, treaties, or the Constitution.
Statutory Law Another source of law is statutory law. Criminal law prohibits and punishes wrongful conduct. The plaintiff —the party filing the complaint—is usually a government body acting as a representative of society. The defendant —the party charged in the complaint—may be an individual or an organization.
Civil law refers to law governing disputes between private parties. The punishment in tort cases is the monetary compensation that the court orders the defendant to pay the plaintiff. An intentional tort is an intentional act that poses harm to the plaintiff. In addition to intentional torts, the law recognizes negligence torts and strict liability torts.
Guilt in criminal cases must be established by proof beyond a reasonable doubt —doubt based on reason and common sense after careful, deliberate consideration of all the pertinent evidence.
Licenses and Attributions. CC licensed content, Original. Despite their common law origins, most tort actions are subject to some statutory variation of the common law principles by state and territory legislation. Numerous statutes limit actions or defences, provide limitation periods, cap or exclude awards of damages, and provide for survival of actions.
The Uniform Defamation Acts in all states and territories modify the common law action of defamation. Professor Creighton and Others, Submission See also, Pollock and Maitland, above n 30, —8; Sappideen and Vines, above n 12, ch The recognised defences to defamation at common law and in statutes provide important but not complete protection of freedom of speech. For example, to prevent a trespass or a nuisance: Sappideen and Vines, above n 12, 58; —3. About us Help Center. Log In Where do you want to login?
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