Common Law or Statute

Common law is law that evolves over time based on custom, practice, and precedent from judicial decisions— it often is called judge-made law—and is found in cases and opinions. Statutory law, by comparison, represents law created by legislative bodies at the federal, state, and local level, ranging from the U.S. Congress to city councils and is found in compilations called codes, such as the U.S. Code embodying federal laws, or ordinances.

Although constitutional law is a primary source of civil liberties, both common law and statutory law directly affect and, sometimes, embody civil liberties. For instance, the common law developed and recognized a right to privacy long before the U.S. Supreme Court discovered a constitutional right to privacy in Griswold v. Connecticut (1965). Sometimes, however, the common law conflicts with civil liberties. For example, the common law of defamation that protects individuals’ reputations restricts the civil liberty of free speech embodied in the First Amendment. In that area, the Supreme Court was forced in New York Times v. Sullivan (1964) to adopt the Actual Malice Standard to balance the common law’s protection of reputation with the U.S. Constitution’s protection of free expression.

Like the common law, statutory law can have both positive and negative effects on civil liberties. For instance, federal statutes have been enacted to protect voting rights and to prevent discrimination. Conversely, recently enacted federal statutes like the USA Patriot Act and the Homeland Security Act restrict the liberties of speech and privacy.

CLAY CALVERT

References and Further Reading

• Holmes, Jr., Oliver Wendell. The Common Law. Boston: Little, Brown, & Co., 1881.

Cases and Statutes Cited

• Griswold v. Connecticut, 381 U.S. 479 (1965)
• Homeland Security Act, Public Law No. 107-296
• New York Times v. Sullivan, 376 U.S. 254 (1964)
• USA Patriot Act, Public Law No. 107-56

See also Balancing Approach to Free Speech; Defamation and Free Speech; Freedom of Speech: Modern Period (1917–Present)