Editing Common law (section)

=== Comparison with statutory law ===

Statutes are generally understood to supersede common law. They may [[Codification (law)|codify]] existing common law, create new [[causes of action]] that did not exist in the common law,{{efn|''Hadley v Baxendale'' (1854) 9 Exch 341 (defining a new rule of contract law with no basis in statute);  ''MacPherson v. Buick Motor Co.'', 217 N.Y. 382, 111 N.E. 1050 (N.Y. 1916) (adjudicating the tort of negligence that existed in no statute, and expanding the law to cover parties that had never been addressed by statute)}} or legislatively overrule the common law. Common law still has practical applications in some areas of law. Examples are [[contract law]]<ref>E. Allen Farnsworth, Farnsworth on Contracts, §&nbsp;1.7, Aspen (2004) (although certain fields of contract law have been modified by statute, "judicial decisions [remain] the dominant primary source of contract law.")</ref> and the [[law of torts]].<ref name="SpeiserLawOfTorts">Stuart Speiser, et al., The American Law of Torts, §§&nbsp;1:2, 1:5, and 1:6, Thomson Reuters (2013) (describing common law development of tort law in England and the United States, and the "little reluctance [of courts] to overrule (or disapprove statements in) decisions in tort law either now deemed wrong or inadvisedly considered" and disinclination toward any contention that change must be by legislation).</ref> 

===="Legislating from the bench"====

At earlier stages in the development of modern legal systems and government, courts exercised their authority in performing what [[Roscoe Pound]] described as an essentially legislative function. As legislation became more comprehensive, courts began to operate within narrower limits of [[statutory interpretation]].<ref name=popkin/><ref name=interpretation>{{cite journal |last1=Pound |first1=Roscoe |title=Spurious Interpretation |journal=Columbia Law Review |date=1907 |volume=7 |issue=6 |pages=381 |doi=10.2307/1109940 |jstor=1109940 |quote=The object of genuine interpretation is to discover the rule which the law-maker intended to establish; to discover the intention with which the law-maker made the rule, or the sense which he attached to the words wherein the rule is expressed&nbsp;... the object of spurious interpretation is to make, unmake, or remake, and not merely to discover&nbsp;... it is essentially a legislative, not a judicial process, made necessary in formative periods by the paucity of principles, feebleness of legislation and rigidity of rules characteristic of archaic law. So long as law is regarded as sacred, or for any reason as incapable of alteration, such a process is necessary for growth, but surviving into periods of legislation, it becomes a source of confusion.}}</ref>

[[Jeremy Bentham]] famously criticized judicial lawmaking when he argued in favor of codification and narrow judicial decisions. Pound comments that critics of judicial lawmaking are not always consistent – sometimes siding with Bentham and decrying judicial overreach, at other times unsatisfied with judicial reluctance to sweep broadly and employ case law as a means to redress certain challenges to established law.<ref>{{cite journal |last1=Pound |first1=Roscoe |title=What of Stare Decisis? |journal=Fordham Law Review |date=1941 |volume=10 |issue=1}}</ref> [[Oliver Wendell Holmes Jr.|Oliver Wendell Holmes]] once dissented: "judges do and must legislate".<ref>''Southern Pacific Co. v. Jensen'', 244 U.S. 205, 221 (1917) (Holmes, J., dissenting).</ref>

====Statutory construction====

There is a controversial legal maxim in American law that "[[Derogation#Common law|Statutes in derogation of the common law ought to be narrowly construed]]". [[Henry Campbell Black]] once wrote that the canon "no longer has any foundation in reason". It is generally associated with the [[Lochner era]].<ref>{{cite book |last1=Popkin |first1=William |title=Statutes in Court: The History and Theory of Statutory Interpretation |date=1999 |publisher=Duke University Press |page=97}}</ref>

The presumption is that legislatures may take away common law rights, but modern jurisprudence will look for the statutory purpose or legislative intent and apply rules of statutory construction like the [[plain meaning rule]] to reach decisions.<ref name=popkin/> As the United States Supreme Court explained in ''United States v Texas'', 507 U.S. 529 (1993):{{primary inline|date=February 2024}}

{{blockquote |text=Just as longstanding is the principle that "[s]tatutes which invade the common law ... are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident. ''Isbrandtsen Co. v. Johnson'', 343 U.S. 779, 783 (1952); ''Astoria Federal Savings & Loan Assn. v. Solimino'', 501 U.S. 104, 108 (1991). In such cases, Congress does not write upon a clean slate. ''Astoria'', 501 U.S. at 108. In order to abrogate a common-law principle, the statute must "speak directly" to the question addressed by the common law. ''Mobil Oil Corp. v. Higginbotham'', 436 U. S. 618, 625 (1978); ''Milwaukee v. Illinois'', 451 U. S. 304, 315 (1981).}}

As another example, the [[Supreme Court of the United States]] in 1877,<ref>''Meister v. Moore'', 96 U.S. 76 (1877) ("No doubt a statute may take away a common law right, but there is always a presumption that the legislature has no such intention unless it be plainly expressed.")</ref> held that a [[Michigan]] statute that established rules for [[solemnization]] of marriages did not abolish pre-existing [[common-law marriage]], because the statute did not affirmatively require statutory solemnization and was silent as to preexisting common law.

Court decisions that analyze, interpret and determine the fine boundaries and distinctions in law promulgated by other bodies are sometimes called "interstitial common law", which includes judicial interpretation of fundamental laws, such as the [[US Constitution]], of legislative statutes, and of [[Regulation (law)|agency regulations]], and the application of law to specific facts.<ref>{{Cite web |title=Common Law |work=Atlas of Public Management |url=https://www.atlas101.ca/pm/concepts/common-law/ |access-date=2024-02-02 |language=en-US}}</ref>