Source: p 5, How to Study Law (2010 6 ed) by A Bradney, F Cownie, J Masson, A Neal & D Newell.

Not all legal rules are laid down in an Act Of Parliament or some other piece of legislation. A number of legal rules are found in the statements of judges made in the course of deciding cases brought before them. Rules that come from judicial decisions, rather than from legislation, make what is called the common law. A common law rule has as much force as a rule derived from statute. Many important areas of English law, such as contract, tort, criminal law, land law and constitutional law have their origins in common law. An explanation of the differ- ent divisions of law is to be found in Chapter 2. Some of the earliest common law rules still survive, though many have been supplemented or supplanted by statute. Common law rules are still being made today, though, as a source of new legal rules, common law is much less important than statute.
   Strictly speaking, the term common law is confined to [1.] rules that have been developed entirely by judicial decisions [End of 1.].
It excludes [2.] new rules made by judges when they interpret statutes [End of 2.]. Most decisions made by judges now involve, at least in part, interpreting statutes.
[3.] The term case law covers both kinds of decisions [End of 3.].

  1. Is 2 inaccurate: is it inaccurate to consider statutory interpretation as 'new rules made by judges'' (i.e. judicial legislation)? I doubt that judges would admit to creating new rules [...] when they interpret statutes. Statutory Interpretation (which even Originalist judges do!) differs from Judicial Legislation.

  2. 3 states that case law = 1 + 2, but I cannot discern the differences between 1 and 2. I use the Set Theory symbol ⊆ to mean 'is a (proper) subset of'.

How exactly does 2 differ from 1? Why is not 2 ⊆ 1, because judicial decisions (per 1) ⊆ statutory interpretation or legislation (per 2)? I understand numerical distribution of the sources of law possibly to vary for different cases: but 2 appears not to mean this.


2 Answers 2


The original common law was solely made by judges. Most crimes like murder, rape and theft were creatures of common law. For example the NSW Crimes Act actually abolished the common law crime of rape, replacing it with a number of statutory offenses. Prior to its enactment, when a judge made a ruling on a new aspect of "rape" he (when the law was made in 1900, females could not be judges) was expanding the common law. When such a thing happens today about "sexual assault" (rape having been abolished) she is interpreting a statute.

The author is making a pedantic point about the difference between common law (made by judges) and common law systems (where judges can make these decisions). By contrast, civil law systems are wholly reliant on an interpretation of statutes as there is no "common law" to fall back on.

  • +1. Thank you. If I understand your answer perfectly: The author's 1 = your common law (made by judges) , and the author's 3 = your common law systems (where judges can make these decisions).. But what about 2: did you discuss this in your answer?
    – user89
    Oct 29, 2016 at 15:48
  • Would you please respond in your answer, because it is easier to read than comments?
    – user89
    Oct 29, 2016 at 15:49

It is not inaccurate to consider statutory interpretation as 'new rules made by judges'. For example, Roe v. Wade is well understood by legal professionals to be "the law of the land". Law is a system of rules, with numerous sources: statutes, constitutions, decrees, orders, regulations, and appellate precedent. No statute can be "applied" in a vacuum, it must be applied according to rules of interpretation. Some rules of interpretation are created by legislatures, and some are created by courts. Rules are rules.

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