jurisdictions, including the United Kingdom.
44
In this way common law
operates in many legal systems, although the rules are not always identical.
45
Statutory Common Law
There is a new wave of common law being created called statutory common
law. To understand its nature it is necessary to know that common law resides
on a continuum. At one end is pure common law, which is law made entirely
by judges. At the other end is judicial interpretation of a statute where a court
must decide between two or more fairly specific competing meanings.
In the middle of the continuum are places where the law is statutory so that
courts must interpret it, but as they do so, courts also make law in a
substantial way.
46
This happens where a statute uses a wide and open term
such as "just," equitable," or "appropriate," and
a court interprets the
provision. To do so the court must flesh out these malleable terms with
description, components, guidelines and criteria. This process is done through
an ever extending line of cases. It can be conceived as thick interpretation. It
can also be conceived as statutory common law in that interpreting a statute
with wide and open terms constitutes a simulated form of making common
law. It is common law developed from a statutory base,
47
or arisen from a
statutory launching pad.
48
Interpreting Law
Cases that interpret common law are clearly part of the common law itself;
indeed with common law the processes of making, modifying, amending and
interpreting blur into each other. Cases that interpret legislation can be
conceived in either of two ways -
as statute law since they attach meaning to
statutes, or as common law since the interpretations are made by the courts.
2
Secondary Sources
[An academic writer] is exposed to the perils of yielding to preconception.
49
44
See Von Nessen (1993).
45
For a comparison between common law in England and the United States
see Tunc (1984).
46
Easterbrook (1983) p 544
47
See Atiyah (1985), Beaten (1997), Burrows (1980), Burrows (1976B),
Calabresi (1982), Finn (1992), Kelly (1986), Kirby (1992B), Rubin (1982). One place
where statutory common law flourishes is tax law, where according to Lehman
(1984) it operates in a mathematical culture.
48
See Kirby (1992).
49
This is the view of Megarry J explaining in Cordell v Second Clayfield
Properties
[1968] 3 WLR 864 at 872 why courts should not defer to the views of
academic text writers on questions of law.
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