3.5. Sources of Law: Administrative Law, Common Law, Case Law and Court Rules
3.5. Sources of Law: Administrative Law, Common Law, Case Law and Court Rules
Lore Rutz-Burri and Kate McLean
Administrative Law (Agency-Made Law)
State and federal legislatures cannot keep up with the task of enacting legislation on all the myriad subjects that must be regulated by law. In each branch of government, various administrative agencies exist with authority to create administrative law. At the federal level, for example, the Environmental Protection Agency enacts regulations against environmental crimes. At the state level, the Department of Motor Vehicles enacts laws concerning drivers’ license suspension. Administrative regulations are enforceable by the courts provided that the agency has acted within the scope of its delegated authority from the legislature.
Common Law
One important source of criminal law in the United States is common law. English law developed over centuries and, generally, when we refer to American common law, we are referring to the common law rules brought over from England to the United States when we became a nation. However, this is not necessarily always clear. [1] LaFave describes the process by which common law was derived in England:
“. . . Although there were some early criminal statutes [in England], in the main the criminal law was originally common law. Thus by the 1600s, the judges, not the legislature, had created and defined the felonies of murder, suicide, manslaughter, burglary, arson, robbery, larceny, rape, sodomy and mayhem; and such misdemeanors as assault, battery, false imprisonment, libel, perjury, and intimidation of jurors. During the period from 1660 . . . to 1860 the process continued with the judges creating new crimes when the need arose and punishing those who committed them: blasphemy (1676), conspiracy (1664), sedition (18th century), forgery (1727), attempt (1784), solicitation (1801). From time to time the judges, when creating new misdemeanors, spoke of the court’s power to declare criminal any conduct tending to “outrage decency” or “corrupt public morals,” or to punish conduct contra bonos mores. Thus, they found “running naked in the streets”, “publishing an obscene book”, and “grave-snatching” to be common law crimes.
Common law is a source of both substantive and procedural law (discussed below), but it is important to note that there are no federal common law crimes. If Congress has not enacted legislation to make certain conduct criminal, that conduct cannot constitute a federal crime. Moreover, common law only stands where there exists no statutory (or legislative) law, and common law standards are always displaced by new legislative enactments. Finally, common law is subject to the same limitations posed by federal and state constitutions.
Judge-Made Law: Case Law
The term case law refers to legal rules announced in opinions written by appellate judges when deciding appellate cases before them. Judicial decisions reflect the court’s interpretation of constitutions,