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Common Law vs. Statutory Law: What Is the Difference?

difference common law and statutory law


The laws governing a country are a critical element of its existence and provide the framework within which a society operates. There are two main types of law: common and statutory law.

Statutory law is a written body of rules created by elected officials, while common law is a set of unwritten principles based on judicial decisions and precedents. In legal proceedings, unexpected outcomes like a mistrial can lead to various consequences. Curious about what happens after a mistrial? This situation intersects with the distinctions between common law and statutory law, shedding light on the paths that legal proceedings may take.

Understanding the differences between common law and statutory law can be critical in several situations, especially when you are caught in a tricky legal battle.

This post discusses the basic definition of common law and statutory law, their history, and the critical differences between these two types of law.

Common Law: A Brief Overview

Common law is a type of law based on judicial precedent, or prior courts’ decisions, rather than on statutes enacted by legislatures. In other words, common law is derived from judges’ opinions rather than from legislative action.

The concept of common law originated in England, where it was used to settle disputes between citizens. In 1215, the Magna Carta, one of the first examples of common law, was signed into effect. This document guaranteed certain rights to English citizens and limited the king’s power.

Common law became the legal system of both England and its colonies, including the United States. In fact, the U.S. legal system is still based on common law principles.

Statutory Law: A Brief Overview

Statutory law is a written body of rules enacted by a legislature. Statutes are passed by Congress or state legislatures and signed into law by the president or governor. Once a statute is enacted, it becomes binding and must be followed by everyone in the jurisdiction.

Statutes are created to address specific issues and problems. For example, Congress may pass a statute to regulate the sale of firearms. State legislatures may pass statutes to establish speed limits on highways.

The Key Differences Between Common Law and Statutory Law

Now that you have a basic understanding of common-law and statutory law, let’s take a closer look at the key differences between these two types of law:

1.     Origin

Common law is derived from judicial precedent, while statutory law is derived from legislative action. In most cases, common law is created by judges when they issue rulings in court cases.

These rulings become a binding precedent for future cases with similar facts. Statutory law is created when legislatures pass statutes, which are then signed into law by the president or governor.

2.     Jurisdiction

Common applies in federal and state courts, while statutory only applies in the jurisdiction in which it was enacted. For example, if a state legislature enacts a statute, that statute only applies within the state. However, a court ruling based on common law principles would apply in state and federal courts.

3.     Scope

Common law is generally more flexible than statutory law. This is because common law can be adapted to changing circumstances, while statutory law is more rigid.

For example, if a new type of crime is committed, common law can be used to prosecute the offender. However, if no statute has been enacted to address the new crime, the offender may not be charged.

Common law is also more detailed than statutory law. This is because it is created on a case-by-case basis, while statutes are created to address general issues.

For instance, common law may provide specific guidelines for handling a contract dispute. However, a statute may simply state that contracts must be enforced in accordance with the law.

4.     Enforcement

Common law is enforced by courts, while statutory law is enforced by executive branch agencies. When a law is violated, the offender can be prosecuted in court.

If the offender is found guilty, the court will issue a judgment that includes a sentence, such as prison time or a fine.

Executive branch agencies are responsible for enforcing statutory law. For instance, the Securities and Exchange Commission (SEC) is responsible for enforcing securities laws. Violators of securities laws can be fined or imprisoned by the SEC.

5.     Binding Authority

Common is binding on all courts in the jurisdiction, while statutory is only binding on the court in which it was enacted. For example, if a state legislature enacts a statute, that statute is only binding on state courts. However, a court ruling based on common law principles would be binding on both state and federal courts.

6.     Legal Process

Determination of common law for a particular case usually begins with research analysis, location of previous similar cases, extraction of statements, the sentences passed, and an analysis of these findings.

The determination of statutory law usually begins with the same research process as common law, but may also include an analysis of the statute’s legislative history. This involves looking at the debates and discussions that took place when the statute was being enacted.

Common vs. Statutory Laws: How Do They Relate?

Now that you understand the key differences between common law and statutory law, you can see how these two types of law work together to create a well-rounded legal system.

In general, common law is used to fill in gaps when no statutory law applies to a specific situation. For instance, if a new type of crime is committed, common law can be used to prosecute the offender.

Similarly, if there is a dispute over an issue not addressed by statute, common law may be used to resolve the issue. In some cases, common law may even take precedence over statutory law.

For instance, if a statute is found to be unconstitutional, it will be struck down by the courts, and common law will take its place.

Of course, not all legal systems rely on common law. Some countries, such as France and Japan, have civil law systems. In a civil law system, statutory law is the primary source of law, and common law plays a relatively minor role.


In summary, common and statutory laws are both essential aspects of the legal system in the United States. Understanding the key differences between the two is essential for anyone looking to navigate the legal process.

While they share some similarities, several key distinctions also set them apart. It’s important to be aware of these when dealing with either type of law.

Also Read: Civil Law vs Criminal Law: Breaking Down the Differences


This article is written by Naphtal. He is the brand manager at Legal Giant and a highly experienced content writer. Legal Giant is a leading lawyer referral site with clients all over the U.S. When Naphtal is not working, he enjoys spending time with his son and exploring nature.


    • 2 years ago (Edit)

    If Common Law is able to fill in the gaps that are in Statutory Law because of its flexibility, why do we need Statutory Law? It seems Common Law has been its own gap filler and more than adequate for hundreds of years. It seems we are being judged by a dead statue in Statutory Law than live human beings under Common Law. Could be something we should think about, i.e., the ramifications of a possible dichotomy brought on by a forced marriage between the two. Could it be because that way we will be ruled under Maritime Admiralty (water) Law rather than Common (land) Law.

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