On The Relationship Of Common-law Statutes And Case Law

The most fundamental phenomenon in the common law jurisdiction is the coexistence and interaction of the two main sources of law,case law and statute.By enaction of statute,the legislature can choose to incorporate,change or repeal an existing case law rule or principle or guide the development of future.case law.The judiciary can uses case law to assist the construction of a statute or the reasoning from a statute by analogy.This article has four chapters as follows:ChapterⅠdiscribes the basic infomation of case law and statute,including the concepts,forms,legal bindingness and ways of application of each of them.An overview of the history of them two is also given in this chapter.ChapterⅡshows us how the legislature deals with the relation of the two sources of law by encation of stautes.The four main results of the legislature's treatment of case law are restating the existing case law and incorporating it into the statutory system,modifing or repealing the existing case law,checking the development of the case law in repugnant of legislative intention and permiting the development of case law though construing or reasoning from the statute.ChapterⅢillustrates the three senarios when a court deals with the relation Of case law and statute,which are construing the statute against the legislative intention or denying the applicability of a statute in derogation of common law,preempting the case law with statute or construing a statute liberally to fulfill its legislative intention, synchronizing a statute with case law through legal interpretation or reasoning from it by way of analogy with the assistance of case law.ChapterⅣprovides the mode of the interaction of case law and statute on the basis of the analysis in ChapterⅡand ChapterⅢ.It further explores the underlying structural,traditional and cultural factors of this interaction mode.It also illustrates how this mode attributes to the predicability and social adaptability of the law as a whole and to the protection of rights.