A recent answer distinguishes the two but I had always thought that common law includes both civil and criminal components. Does it not?
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1I’m guessing that this refers to this answer of mine, where as I’ve since commented, I wrote “criminal” when I meant to say “statute”. Common law does cover both civil and criminal aspects, though as Dale M says, most crimes are statute law nowadays. (I wonder if anyone has done a count in the other direction: are more statutes concerned with civil or criminal law?)– Tim PederickFeb 19 at 17:09
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3 Answers
Yes. And also no.
See What is the difference between Common Law and Civil Law in the U.S.?
A common law system is a common law system and that obviously encompasses criminal law. But that’s not the only definition of common law.
In most common law jurisdictions, most crimes are now statutory crimes. That is, what they are and the punishment for them is detailed in an Act of Parliament (or local equivalent).
However, the codification of what were once common law crimes is not (and arguably cannot) be complete. There still exist common law crimes which can be pulled out when needed. For example, in DPP v Pusey, the defendant was pulled over by several police officers and, while this was happening, a large truck collided with the stopped cars and the police officers were killed. While they were dying Pusey took out his phone and recorded their deaths while mocking and taunting them. This was not against any statutory criminal code in Victoria. So, the Director of Public Prosecutions pulled out the archaic common law offence of outraging public decency.
In addition, statutory crimes are necessarily interpreted by judges and aggregate a collection of common law rulings around them.
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3It certainly can be complete and is in many jurisdictions. There are only a handful of U.S. jurisdictions where what was done in Victoria could be done. Feb 19 at 20:23
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"A common law system is a common law system"? Is that supposed to be "A common law system is a law system"?– muruFeb 20 at 5:21
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Yes there are common law jurisdictions that have codified their criminal law to the point that common law crimes are no longer recognized (as in all crimes are statutory crimes, even if the common law may be used to interpret those statutes or for things like defenses). These include the United States federal government and a number of its states. Feb 20 at 7:05
common-law covers both civil-law and criminal-law
The civil-law tag description reads:
For questions relating to non-criminal legal branch of common-law legal systems. Not to be confused with civil-legal-system, relating to civilian or Roman law.
... and there is your problem. The answer almost certainly meant to refer to civil-legal-system
answered Feb 19 at 9:01
Criminal law is part of common-law legal systems and is usually based largely on a codified set of rules as interpreted and applied by the judiciary. In canada this is primarily the Criminal Code, although there are also other statutory sources.
Even in jurisdictions with codified criminal law, non-statutory sources live on and continue to be developed:
- "Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament" (s. 8(3));
- other than contempt of court, common-law offences are abrogated (s. 9);
- rules of evidence, including privilege, are largely driven by common law (this is also supplemented with the Canada Evidence Act);
- interpretation of the provisions of the Criminal Code follow common-law practices: judges apply statutory interpretation, and later judges are bound according to the ordinary application of stare decisis.
