With this post I continue to share with the class and interested "others" summary study notes for the course readings. For this post we consider: I. What is Law? C. Law Articulated by Legislatures: Statutory Law. Comments and discussion most welcome.
The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.
The question concerns the relationship between the common law and statute law. Does our law constitute, in some sense, a single coherent, integral body of law, or does it consist of two separate entities, two streams running on parallel lines one of which occasionally feeds into the other, but which are destined for ever to retain their separate identities? (Ibid., 1).This he believes is important in order to understand the way two distinct and developing bodies of law operate within a single legal system. That is an issue as much for the United States as the United Kingdom.
Professor Atiyah first reminds the student of the fundamental difference between statute in common law systems and those of civil law states--statutes are discrete legislative actions, even when they propose a fairly well integrated regulatory scheme (corporate regulation for example). Statues in common law states are not integrated into a substantially self contained system, such as the Code Napoleon or the Germain Civil Code. Rather they are embedded into a system that includes and generates other statutes and further development of common law (in the form of rules, standards and applications of the statute itself). In this they resemble case law but with a different character (p.2). Professor Atiyah then suggests three examples of the interwovenness of statuette and common law. The first are statutes that adopt a very broad textured type of language which requires courts to "fill in the gaps" through case law (p. 3). The second are statutes that confer discretion on the courts to resolve conflicts or disputes according to some specified formula, or more dangerously as is "just as equitable." He uses the example of the English matrimonial property statutes. Students should consider why Professor Atiyeh view statutes of this kind with some concern. (pp. 4-5).
The proliferation of these discretions appears to me to arise at least in part from the realisation that legislation, even when fleshed out by detailed subordinate legislation, simply cannot anticipate and provide for the great variety of cases which are likely to arise; and that Parliament therefore prefers to proceed in partnership with the judiciary. (Ibid., 5).
Can they justify jettisoning obsolete cases, not because they have been actually reversed by some statutory provision, but because a statute suggests that they are based on outdated values? Could the courts legitimately draw some general principle from a limited statutory provision, and apply that principle as a matter of common law? (Ibid).These were issues raised famously by the U.S. scholar Roscoe Pound in 1907 ("Common Law and Legislation” (1907) 21 Harvard Law Rev. 383). Professor Atiyah's discussion of Pound's discussion of the distinct ways in which courts receive statutes remains important: (1) strict and narrow interpretation, no reasoning from statutes by analogy (2) broad interpretation, no reasoning from statutes by analogy, (3) statutes received fully into common law and treated like cases; (4) statutes treated as a higher source of law from which reasoning by analogy would be necessary. U.S. law of the early 1900s had just reached the first stage, as Professor Clarks' article illustrated nicely. English law had reached the third stage (Ibid., 7). Professor Atiyah suggests that it is possible for courts to give statutes no effect as statute beyond their narrow confines but to apply statutes as a source of analogy or principle to justify changing common law. He provides a number of arguments. He then discusses a number of legal areas where he argues that English courts already develop the common law by analogy to statutes or from their principles. Lastly, Professor Atiyah considers the way in which courts treat statutes that reverse or supplant common law. (Ibid., 20-22). He suggests a range of reaction--from treating the statutory derogation narrowly not affecting prior cases except to their holdings to those instances where a statute is deemed to require re-adjustment of the common law in the area touched on by the statute. We will consider this possibility under contemporary U.S. legal principles as the semester proceeds. We will discover that, at leats in the area of corporate law, this is already a well established judicial methodology, especially in the area of fiduciary obligations. Professor Atiyah suggests that certain U.S. statutes, including the Uniform Commercial Code already recommend the application of its provisions by analogy for decisions (Ibid., 27). We will consider whether Professor Atiyah's assessment of the U.S. system applies in fact:
For one thing, our legislature is much more active than American legislatures, especially state legislatures. The need for judicial creativity is much greater there, and there is a corresponding need for methods by which the courts can jettison obsolete laws based on out-dated values. For another thing, American legislatures are accustomed to being told what they can and cannot do by the courts.(Ibid., 27).