Do judges have the discretion to apply older laws or rulings, or do they have to follow the new legislation regardless?

By historical precedents, I am referring to the common law that has developed over time through various judicial rulings.

3 Answers 3


The new law wins. That's rather the point of passing a new law-- the legislature wants to change the current law of the land whether that is based on statutes or court rulings.

Of course, there are caveats. Prior judicial rulings may have relied on an interpretation of a source of law that supersedes the legislature in question (i.e. based on an interpretation of the state or federal Constitution or based on a federal law that supersedes the state law). In that case the new law would be found unconstitutional or ignored. Or the new law might have an ambiguous interaction with current law that courts would have to resolve. The new law might clearly make X illegal but there may be legitimate questions about whether it intended to make previously legal action Y illegal as well. It is, after all, very difficult to write a law that covers every possible fact pattern one would encounter in the real world.

  • So common laws are more like subordinate "guidelines" to "real laws" from actual legislation?
    – AlanSTACK
    Dec 6, 2022 at 20:31
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    @AlanSTACK - I'm not sure I follow the question. What is technically common law is law (though it derives from judicial rulings rather than legislature). You seem to be using "common laws" potentially differently. But law is law. And the point of a legislature is to pass new laws in order to change old laws. Dec 6, 2022 at 20:35

I agree with the answer from @JustinCave and I am just adding a concrete example.

In Colorado, the state supreme court decided some cases that interpreted the common law of premises liability (i.e. the liability of a landowner for injuries that take place on their land) in the state. The legislature didn't like the legal rules that resulted from those decisions.

In response, the legislature passed Colorado Revised Statutes § 13-21-115 Actions against Landowners, often referred to as the Colorado Premises Liability Act, that overruled the state supreme court holdings and adopted a different set of rules for premises liability.

(Actually, it was a bit more complicated than that, with at least two rounds of court decisions and two rounds of legislative acts overruling those court decisions.)

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    FYI The "@name" syntax does not work in answers, only in comments. Dec 7, 2022 at 16:44
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    @DavidSiegel Wasn't sure but primarily I simply want to give credit where credit is due.
    – ohwilleke
    Dec 7, 2022 at 17:20
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    Giving credit is a very good idea. One can write in an answer "I agree with the answer by UserX" without the @. One can even link to the answer to make it explicit which answer is meant, using the URL from the "share" link. It is just hat the @ won't notify the person mentioned if used in an answer (or a question). The @ syntax only pings users who have previously commented in that thread, and only if used in a comment. Dec 7, 2022 at 19:31

In countries with common-law systems, like the United States a new statute that contradicts a previous common-law precedent. A judge does not have authority to disregard the new statute in favor of the older precedent.

However, a new US state statute cannot override a previous federal law, a federal constitutional provision (or a court ruling interpreting such a provision), nor a state constitutional provision. A new state statute which contradicts any of those will be ignored, or held top be unenforceable, at least to the extent of the contradiction. Similarly, a new local ordinance cannot override an existing state law, unless the state law allows for this.

If a new state statute modifies some older common-law rules, but does not directly contradict others that apply to a situation, a court may well apply as many of the previous rules as were not directly changed by the new law. If it is not clear whether the new law was intended to change an existing precedent or not, a court may well prefer to assume that it does not, and rule so as to apply both the new law and the old rule, if that is possible.

Note that the rule for an older existing state statute is the same as for a previous common-law precedent. A new law overrides any prior contradictory law (at the same level) if it is clearly intended to do so. But when the new law does not clearly repeal or modify the old one, a court may attempt to apply both.

A comment asks:

So common laws are more like subordinate "guidelines" to "real laws" from actual legislation?

No, common-law rules are laws and have the same status as statutes, but the rule is always that at the same level, the newer law overrides any older law, and the statute is treated as newer than any common law.

I should add that I agree with the answers by Justin Cave and ohwilleke, and I have upvoted both. But I wanted to make the point tht "newer law overrides older law at the same level" is a general rule, and not something that applies only to common-law rulings.

  • It might be better explained as "a legislation (law or ordinance) can not override a law of higher status" - US Constitution trumps federal law,, federal law trumps state law, state law trumps county regulations, county regulations trump city ordinances etc. just not sure where common law is in that stack.
    – Trish
    Dec 7, 2022 at 16:53
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    @Trish. It is not always the case that "county regulations trump city ordinances". The scope of each will be set by state law. Some county regulations (which are often called ordinances also) do not apply within cities, or where city ordinances apply. Both are definately subject to state laws. Dec 7, 2022 at 17:00
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    that's certainly the case, I was thinking about cases of overlapping jurisdictions, where county is above it's smaller municipalities.
    – Trish
    Dec 7, 2022 at 17:47
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    @AlanSTACK The US Supreme Court cannot act any differently than any other US court in such matters. The Court can strike down laws for violations of the Constitution. It can authoritatively interpret laws, but it is not supposed to change their plain meaning in doing so, nor simply ignore valid laws. Its decisions are binding on other US courts, but can be and sometimes are overruled by later laws, except when it interprets the Constitution. Dec 9, 2022 at 16:21
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    @Trish It also happens that a law of "higher status" explicitly defers to a law of "lower status". A federal law may read "The rule shall be X, unless a state law provides otherwise." A State law may provide a default "except where a local ordinance provides otherwise". This makes "higher trumps lower" a bit more complex. Dec 9, 2022 at 16:26

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