Deciphering Common Law and Statutes

What is Common Law?

Understanding the intricate workings of the United States legal system can be a challenge, especially for those unfamiliar with terms like common law and statutes. In this article, we’ll demystify these concepts and shed light on how they shape the legal landscape.

Common Law

Common law is not some esoteric realm reserved for legal scholars; rather, it’s a fundamental principle that underpins much of our legal system. At its core, common law refers to legal decisions handed down by judges in court cases. These decisions, based on precedent and interpretation of existing laws, serve as a guide for future rulings.

Statutes: The Legislative Backbone

While common law arises from court decisions, statutes are laws enacted by legislative bodies such as Congress. Unlike common law, which evolves through judicial interpretation, statutes are codified rules created by elected officials. They cover a wide range of topics, from criminal offenses to property rights, providing a clear framework for legal proceedings.

Harmonizing Common Law and Statutes

In the United States, common law and statutes coexist, each playing a vital role in shaping the legal landscape. While statutes provide a solid foundation for the law, common law fills in the gaps, offering flexibility and adaptability in cases where statutory law may be lacking or ambiguous.

Why Does It Matter?

You might be wondering why all this legal mumbo jumbo is relevant to you. Well, understanding common law and statutes can have significant implications in various aspects of life. Whether you’re a business owner navigating contractual disputes or an individual involved in a personal injury case, knowing how these legal principles apply can make a world of difference.

The Complexity Conundrum

Legal writing often gets a bad rap for being overly complex and jargon-filled. However, striking the right balance between clarity and complexity is crucial for effective communication. While legal documents must be thorough, they should also be accessible to those without a law degree.


In a nutshell, common law and statutes are two pillars of the United States legal system, each serving a unique purpose in shaping the law. By understanding these concepts and their interplay, individuals can navigate legal challenges with confidence and clarity. So the next time you find yourself grappling with legal issues, remember that common law and statutes are there to guide you.

Video Transcript

About Common Law

When people learn how the law works in the United States, they are often a little confused by the idea that we have common law and statutes. Those are terms we don’t hear a lot of, and they also seem to conflict. So, I am doing this little video to explain what common law is, what statutes are, and how they operate together in the United States.


I am Aaron Hall. I am an attorney in the United States. I represent business owners and entrepreneurial companies. This YouTube channel is designed to provide public education information.

What is Common Law?

Well, in a country where you don’t have any statutes passed by Congress, a legislature, or an elected body, often you have decisions that are made by judges.

An Example

Let me give you an example. Let’s say that you have no laws on your land and there is a dispute over who owns something. Let’s say you are disputing who owns some cattle. One person says, “That cattle went onto my land. I own it.” The other person says, “Nope, that is my cattle.” And let’s say it is even a little more complicated. The cattle had some calves on somebody’s land. And the person is arguing, “Any cattle born on my land should be mine, even though it is a descendant of your cattle.”

Now, keep in mind, that we don’t have any laws at this point because this was hundreds and hundreds of years ago. How does this get resolved?

Well, typically, those two people who are in a dispute would go to a leader. We will call him a judge, and the judge will decide, “Who is right? Who is wrong? How are we going to resolve this?” Now you love to hope that parties can resolve it before they get there, but normally issues are decided by these judges.

So in times many hundreds of years prior, you would have judges appointed to different jurisdictions. And those judges would ultimately decide all of these disputes, whatever they might be. Now maybe you had some laws that were written, but not always.

When the judges made decisions, those decisions were called common law. In other words, if a judge said, “Alright, whenever cattle are born on someone else’s property, those newly born cattle belong to the property owner where they were born.” If that is the pronouncement of the judge, then that becomes the common law. In essence, the idea is, “Hey, look, keep your cattle on your property.”

If it is such a bad problem that your cattle wander onto somebody else’s property and have a calf there, that calf is owned by the property owner. I am not saying that is a good law, but that could be a common law. That could be a law made by a judge. To have consistency throughout the land, you want to have that same rule or law applied in multiple circumstances, not just the first time, but every time it happens. That is called precedence.

So if it’s happened once, that establishes a precedence, and that precedence should be followed every single time this same issue comes up. When you have a lot of precedence, that is what we call the common law.

Statutes and Common Law in the United States

Now, in the United States, we have a lot of statutes, and the general rule is that, first, the Constitution is the ultimate authority. Under the constitution, you have statutes. They are the next authority. But if the statutes don’t make something clear, we still, in the United States, have common law, which means our judges have to decide who is right and who is wrong when the law isn’t very clear.

You might not say, “How could the law not be clear?” There are bookshelves full at the law library of all sorts of statutes. And not to mention all the cases. I mean, the cases take rows and rows if not rooms, and that is all the common law.

The problem is that often a statute will use a word or a term that may not be defined in the statute, so it is up to a judge to define it. For example, if a statute says that a person will give notice to another person if something is done wrong, the question is, “Well, what is notice? Is notice when the letter was sent? Is it when it was received? What if the letter wasn’t received because the person was out of town? Or what if it was an email and it went to a spam folder? Or what if it was a phone call and it was a message left on an answering machine that never got checked? Or what if the person got it but they deny getting it?”

How is all that handled? Well, a statute might just say, “You have to give notice.” And once notice is given, these other things happen, but then it is up to the court, the judges to decide, “Well, what is notice and what is reasonable as far as notice taking into account? Sometimes it is by letters, by email, sometimes by phone, maybe by text, or maybe one of these other apps that allow people to communicate with each other.”

One example of a common law might be a judge saying, “To the extent, the parties have used a particular app for communicating with each other, they have established by their actions that that is a reasonable way to communicate, and they have a reasonable expectation that the other party will receive that message.”

So by their actions, a judge may say it is reasonable for parties to assume notices are delivered if they use the communication vehicle that they typically have used. That would be common law because it may not be spelled out in statute what apps can be used and what technology can be used. But cases may establish how that fact pattern is resolved. That is common law.


So in the United States, common law generally can be trumped by statute, and statutes are trumped by the Constitution. In other words, if there is a conflict between the Constitution and statutes, the Constitution prevails. If there is a conflict between statutes and the common law, statutes prevail.

But to the extent that statutes are silent on an issue, we look to the common law, and the common law is all of these cases. And of course, even within cases, some are more important than others. If it is decided by the Supreme Court, it is more important than decisions at a lower court. And so even with courts, you have a hierarchy.

Then we also look at typically more recent cases that have more relevance and may have more authority than older cases. So if you have a conflict between a recent Supreme Court case and an old Supreme Court case, the recent case is going to represent current law.

Stare Decisis

So there you have it. That is how the United States can have statutes in its legal system and case law, which are established by decisions from judges that establish precedents that judge after judge will follow. If a judge can’t find the answer in the statute, judges will look to case law to decide so that the case they decide is consistent with prior cases. The name for this legal concept is stare decisis.

I am Aaron Hall. I am an attorney for business owners and entrepreneurial companies. If you are interested in more topics like this, feel free to subscribe. I use this channel to help educate the public on difficult legal topics so that they are empowered to avoid legal trouble and keep their costs to a minimum.