Enacted law is legislation implemented by a government, while common law is established by the judicial system. The American system is based on the British common law concept, but the Supreme Court ruled that the legislature is the supreme authority in creating law. Changes to enacted law are difficult, while common law changes gradually. The relationship between enacted law and common law is complex, with common law often providing clarification and sometimes overturning enacted law. The judiciary may also declare elementary concepts of law in common law expressions.
Enacted law is the entire body of legislation that a government has implemented, including its constitution, legislation that has been passed by the legislature and signed into law by the executive, and regulations promulgated by government agencies to implement the legislation. It differs from common law, often called jurisprudence, which is enunciated by the country’s judicial system in the course of applying and interpreting enacted law. Enacted law often lays the bare framework of the law, while the common law fills in that framework.
The American judicial system is based on the British system, which was in effect in the American colonies until the American Revolution. The British system used a common law concept, where courts established principles of law based on legislation enacted by Parliament. In many cases, it was the courts, and not the Parliament, that established the criminal law. Once the American system was up and running, the Supreme Court ruled that that particular feature of the common law system would not continue in the United States, thus reinforcing the idea that the legislature, and not the courts, was the supreme authority in the creation of law.
Changing the law enacted through legislative action is often difficult to accomplish, due to both legislator workload and political pressures. When changes are made, they are often radical simply because of how long it has been since the last revision. The judicial system, largely immune to political pressure, interprets and clarifies the law on an almost daily basis, often with changes in technology and society. In general, changes to the law implemented through the judiciary are gradual, but they can be dramatic from time to time. You also need to understand that courts are quite strictly bound by precedent, so new cases are judged in light of how previous cases have been handled.
A famous example of a sudden and dramatic change in both promulgated law and common law was the end of state segregation in public schools. Segregation in public schools was common in the United States; in fact, it was a core component of many states’ law, and the system was upheld in an 1896 Supreme Court ruling on the grounds that “separate but equal” educational facilities did not violate the Constitution. Thus, the law enacted by many states, affirmed by the common law, was that segregation was legal. When the issue was raised again in 1956, in Brown v Board of Education, the Court reversed its earlier ruling, stating that “separate educational structures are inherently unequal.” By changing the common law, Brown also overturned the law enacted in all states where statutory segregation prevailed.
Had the American system required legislative action to achieve that goal, it would have taken decades, especially considering the charged political atmosphere of the time. Yet, without a single vote cast in any legislature, one of the foundational elements of American law was overturned, literally overnight. However, the court’s decision in Brown was controversial and his opponents had viable remedies available to counter it; none have ever been seriously attempted, though.
The relationship between enacted law and common law in contracts and torts is also complex. Torts – causes of action that have no criminal component – are rooted in British common law, and therefore live on in the American system, often by reference to statutory law. Some causes of action, however, such as wrongful death, did not exist in British common law and were only established in some American jurisdictions by legislative action. A wrongful death lawsuit cannot be brought in a jurisdiction that does not have a wrongful death statute; on the contrary, negligence has long been a cause for action under the common law, and no special law is needed to bring an action for negligence.
Enacted law and common law in the United States, therefore, exist in a complex relationship to one another. Enacted law, the product of elected officials, is superior to the common law, but the common law often provides clarification to that law and in some cases may overturn it. Furthermore, elementary concepts of law may sometimes be more appropriately declared by the judiciary in common law expressions, than might be expected from the legislator,
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