Why in America has criminal law been codified and became statutory law while all other legal areas are still common law?
Posted by YakClear601@reddit | AskAnAmerican | View on Reddit | 61 comments
I apologize if I should be asking this in a more specialized subreddit. In learning about the American legal system, as a common law country I understand that a lot of law rests on precedents. But that for criminal law, both states and federal law have criminal codes. Why is that the case? Was it always planned that way, like the idea was always to have criminal codes, or did that come about later?
Randvek@reddit
Common law doesn't mean that you don't have codes, it means that judgments serve as the companion to codes. And criminal law still is very much common law. See Miranda warnings, for example. The fact that you need to inform arrestees of certain Constitutional rights stems from common law (though some states have codified this, to varying degrees).
marvsup@reddit
But OP is correct in that a lot of civil causes of action stem from the common law and aren't codified. Whereas this is very rare for crimes.
blastmemer@reddit
Lawyer here: it’s the principle of legality, nullum crimen, nulla poena sine lege, meaning “no crime, no punishment without law.”
It’s a matter of fair notice. People need to know what is legal and illegal, and if illegal, what the punishment is for the system to be fair. It’s effectively required by our constitution through our Due Process Clause and Ex Post Facto clause (crimes must be illegal at the time committed). Also in our federalist system with 50+ jurisdictions with different criminal laws, it would be untenable to just “look up” what’s legal or illegal in each state/territory.
It’s not that they are “codified” per se, as there was never any common law crimes in our history. I would be surprised if many democracies have common law crimes for similar reasons.
The term “common law country” means that, as you say, courts have to follow precedent. But in the criminal context, that means there is common law (precedent) regarding the interpretation of statutes and constitutional protections against unfair enforcement of those statutes (unlike “code law” countries), but if there is no statute, there is no crime. Contrast this with civil law, which does have common law torts, such as negligence.
marvsup@reddit
Maryland still has common law crimes. When we make our sentencing guidelines worksheets, there's a space for the criminal statute, and for some you just write "CL". IIRC, Conspiracy is an example.
SerDankTheTall@reddit
That’s not correct. The Supreme Court decided that all federal crimes had to be statutory in the 18th century (although even today many federal criminal defenses, like self-defense, justification, or entrapment, are not set out in the statutes). But state can, and in some cases do, have common law crimes that aren’t defined by statute. In some states that includes murder!
blastmemer@reddit
Apparently it was 1812 that the Supreme Court nixed federal common law crimes, but even prior to then common law crimes were rarely used let alone the default. The first federal criminal code was published in 1790. As for defenses, they could be considered “common law” but in my mind it’s more a matter of interpreting the statutes. 6 of one half a dozen I guess.
I didn’t know it was allowed at the state level let alone used for murder! Apparently some states recognize the common law crime of murder and just set the penalties by statute.
big_sugi@reddit
Historically, crimes were established by common law. It’s why burglary, for example, was defined by Lord Coke in 1641 as breaking and entering into a building at nighttime with intent to commit a felony, but wasn’t codified in the UK until almost 200 years later. In the US, the first Code of Virginia wasn’t published until 1819, although there were individual criminal statutes enacted before that.
blastmemer@reddit
Yeah, Coke basically founded our legal system 150 years before our existence.
GoCardinal07@reddit
All states have numerous areas of codified law. Here's California, for example: - Business and Professions Code - Civil Code - Code of Civil Procedure - Commercial Code - Corporations Code - Education Code - Elections Code - Evidence Code - Family Code - Financial Code - Fish and Game Code - Food and Agricultural Code - Government Code - Harbors and Navigation Code - Health and Safety Code - Insurance Code - Labor Code - Military and Veterans Code - Penal Code - Probate Code - Public Contract Code - Public Resources Code - Public Utilities Code - Revenue and Taxation Code - Streets and Highways Code - Unemployment Insurance Code - Vehicle Code - Water Code - Welfare and Institutions Code
https://leginfo.legislature.ca.gov/faces/billSearchClient.xhtml
blackhorse15A@reddit
The US is not a common law nation. It's heritage is common law, since the colonies were British before independence, and has retained some aspects of common law. Mainly the idea of stare decisis- rulings from higher courts are binding precedent judges have to follow, and rulings from other courts are persuasive precedent that carries some weight. Point being to keep the law fair across all jurisdictions and between different judges.
The US is a mixed system. While it retains some common law elements, it also has civil law elements- namely the use of statutes that come from the legislature. Written law is very important in the US. The basic (eli5) rule in the US system is that legislatures write the laws, courts interpret the laws for how they apply to a given situation, and the executive carries out the laws. And if legislature is every upset about how judges interpret the law, the legislature can rewrite the law to make it more clear or undo the judicial interpretation (for Constitutional questions this is still true but takes the whole amendment process).
This is all true in both criminal and civil cases. So the premise of the title question that there is a difference seems completely wrong to me. There is some difference in that criminal defendants have a lot of protections that don't exist in civil cases. And laws and procedures for civil cases seem to give the judges more of a focus on finding an equitable solution to the dispute. But there is most definitely written statutes and regulations for civil cases. I'd say most of it is non-criminal. Take NY State as an example. The Consolidated Laws of New York has over 90 titles that the laws are organized into. Only one of them is the Penal Laws, which is the crimes (misdemeanors and felonies of all levels), and one is about Criminal Procedures if you want to include that.
wolferiver@reddit
The Constitution defines what areas belong to the federal government, and then says everything else belongs to the states. Each state has a constitution that defines what the state government can legislate, and everything else falls to local governments. Thus you have a federal court system and each state has its own court system. Of course, some states have tried to impinge on federal rule of law, such as when Texas tried to set up its own border security at their Mexican border. Or when the Great Lakes states tried to make a compact with two Canadian provinces about who can export water from the Great Lakes watershed. That came perilously close to a few states making their own treaty, which is something only the Federal government can do. I think this in part may be why criminal law has been codified.
Sometimes a crime is defined by federal law and sometimes it's defined by a state statute. Sometime a crime is defined by both. Thus Jeffrey Epstein was first tried in Florida, where he got a slap on the wrist. Then he was tried in Federal Court and that's where he got his jail sentence. When a crime is both a federal crime and a state crime, the federal courts usually get preference for prosecution, and then the state can follow along with a second trial, or they can decide not to spend the funds since the criminal has already been prosecuted. Every state has their own state court and prosecution system, and every state also has federal courts and prosecutors residing in it.
But I don't know this for sure as IANAL. I just wrote all this as a thought exercise and would be happy to have someone correct me. We'll all learn something from that.
jessek@reddit
This is more a question askhistorians or legaladvice
CalmRip@reddit
Might want to start with r/law.
big_sugi@reddit
Not r/legaladvice, but possibly r/legaladviceofftopic
MetroBS@reddit
This is a very interesting question and I actually don’t know
Is r/askalawyer a thing? Or r/law might help idk
RedStatePurpleGuy@reddit
Because under the U.S. Constitution the duty of the judiciary is to interpret law rather than to make law. In a common-law system, judges make law. Here that responsibility lies with the legislative branch of government.
cbrooks97@reddit
You really want to live in a place where something only becomes illegal because a judge decided it should be a crime? Somehow I doubt that's how your system works, either.
king_over_the_water@reddit
There are a lot of really, really wrong answers in this thread. I also think that it’s because there is a misunderstanding of the question.
The question OP asked was “why is that the case that both states and federal law have criminal codes.” The answer is pretty simple - federalism.
My guess is the poster comes from a country that has a unitary system of government, where all power flows from a single source at the national capital. In the US, we have a federal system of government, with multiple independent sources of power.
Things become a lot easier to understand when one realizes that the states existed for hundreds of years before the national “federal” government. So it was the states that created the national government and not the other way around. So the states gave the national government some power, but kept some power for themselves. For example, the states kept the power to make all laws within their state. The federal government was given limited power to create laws directly related to carrying out the functions of the federal government. This means both the states and the national government can pass laws. For example, the states can outlaw assault generally (you’re not allowed to assault anyone), while the federal government can only make it a crime to assault someone in specific circumstances (no assaulting a federal employee or no assaulting people in national parks).
If you want to have a discussion about what is common law, how common law differs from civil law, or why there are statutes in common law, that’s a better question for /r/askhistorians or one of the legal subreddits.
Practical-Ordinary-6@reddit
I reread the question and I honestly don't think that was the thrust of it. It was about why codes exist at all.
Cardinal101@reddit
I swear to God OP edited their post to change/clarify their question. But they didn’t disclose their edit.
In the original post OP asked why criminal law was the only statutory law, and all other areas of law were common law.
Hence all the replies answering that original question.
Gotta love Reddit.
JuanMurphy@reddit
In the US Constitution we have the Supremacy Clause which means that the Constitution, Any Federal statutes passed under it and any precedent from the US Supreme Court to be the ‘supreme law of the land’. This means that any conflict of law from the state, county or municipality to Federal laws that the Federal law shall take precedent. All state constitutions have similar clauses from the state down. Within the United States are 13 Circuit Courts of Appeals. They are regional courts where each court represents several states. They are like a Supreme Court for their respective region. They set the precedent for that region as well as judge the legality of a law. This allows laws, practices or procedures to change and hold the weight of the Constitution. Over time this can drastically change what is acceptable or unconstitutional and it allows protections for citizens for when things change. The best example of this looking at the 4th Amendment of the Bill of Rights which basically says that you shall be secure in your houses, person, paper and effects from unreasonable search and seizure. It goes on to say any infringement on this must be with a warrant obtained by probable clause. So you can’t be randomly searched. Until one day a guy was stopped and the cop had probable cause that the subject was a suspect in a robbery. He didn’t have a warrant but noticed a bulge in his jacket and suspended a gun so the cop patted him down and found a gun then arrested the guy. The defense argued all the way to the USSC that the search was unlawful, because there was no warrant. It was true…they stopped a guy, and searched his person without a warrant. The Supreme Court ruled that a minor depredation of civil rights was permissible under the guise of ‘Officer Safety’. The court found that the cop had reasonable suspicion that the guy was the robber and he suspected the guy to be armed and dangerous so a warrantless search was permitted. They clarified that it can only be a pat down search looking for weapons. Now cops will just pat you down whether they suspect you or not of being armed because they can. There other more egregious rulings that have been abused by police over the years where something was allowed for extraordinary circumstances that are now just routinely done. This is common law. In the cases of the extreme there will eventually be a case that will challenge a previous ruling and that ruling will either be affirmed or a new ruling. The most famous example of this was Plessey v Ferguson and then Brown v Board of Education. In Plessey which was a USSC decision from the late 19th century it allowed for racial segregation provided that the government facilities were ‘Separate but Equal’ (this only applied to government institutions) but Brown decided that any segregation by race was unconstitutional. Again this was common law that applied to governmental institutions. Then in 1964 the Civil Rights Act was passed which made it illegal for private entities to discriminate because of race.
To your question, common law addresses the societal change but relies heavily on constitution and original intent
Beneficial-Two8129@reddit
Because judges have shown they can't be trusted with too much discretion; you'll have "hanging judges" who have to be restrained from executing every felon, and you'll have "bleeding hearts" who don't lock up dangerous criminals. You need clearly defined sentencing parameters to ensure judges impose just sentences.
As for the criminal law itself, one of the rights protected by the 9th Amendment is the right to know what the law requires of you. We've actually had laws declared unconstitutional and void on account of being too vague. A reasonable person should be able to know with reasonable effort whether or not a certain action is a crime.
OpeningChipmunk1700@reddit
False premise. Civil law has also largely been codified.
Cardinal101@reddit
On the contrary. State statutes are ubiquitous. For example I checked the California statutes (called “codes”) and there are 29 areas of law that are covered:
Business and Professions Code - BPC Civil Code - CIV Code of Civil Procedure - CCP Commercial Code - COM Corporations Code - CORP Education Code - EDC Elections Code - ELEC Evidence Code - EVID Family Code - FAM Financial Code - FIN Fish and Game Code - FGC Food and Agricultural Code - FAC Government Code - GOV Harbors and Navigation Code - HNC Health and Safety Code - HSC Insurance Code - INS Labor Code - LAB Military and Veterans Code - MVC Penal Code - PEN Probate Code - PROB Public Contract Code - PCC Public Resources Code - PRC Public Utilities Code - PUC Revenue and Taxation Code - RTC Streets and Highways Code - SHC Unemployment Insurance Code - UIC Vehicle Code - VEH Water Code - WAT Welfare and Institutions Code - WIC
Source: https://leginfo.legislature.ca.gov/faces/home.xhtml
okamzikprosim@reddit
IANAL, but my understanding California is relatively unique compared to many states and just breaks up its laws into many different codes, while many other states just codify all law into the same code. In practice, I'm not sure this makes a huge difference with the exception being all the laws in California aren't necessarily in one place.
throwfar9@reddit
Many areas of non-criminal law are statutory now. Examples are much of liability law and most of family law. There are a lot of reasons, but a big one is cost and efficiency. Common law rests on past cases, and that means a lot of research. Statutory law is black letter law; do the facts align or not? It’s easier.
CommandAlternative10@reddit
But even very, very codified areas of the law are going to be interpreted with regulations and case law. We don’t have areas of the law that are “just” statutory. It’s a hybrid.
throwfar9@reddit
Regulations are subsidiary to statues. Statues call for them to be promulgated, usually by an executive branch, but they can’t overrule the statute. They’re children of it.
Case law is always available on any situation, but again, doesn’t rewrite the statute. It helps to understand how it’s been applied, but it shouldn’t be opposition. In cases where differing jurisdictions have interpreted a statute differently the case is usually appealed as far as it needs to go for one view to prevail. But that usually doesn’t happen much outside the federal system.
Braith117@reddit
Criminal, civil, and family law all run on a mix of statutory and common law. The law provides the framework, often with some leeway or aome things open to interpretation, and common law is the result of the courts filling in the gaps on edge cases.
tooslow_moveover@reddit
I don’t think the premise is accurate, at least not here in California. We have codified penal (criminal) law, but we also have 26 other areas of codified law. In my job, I regularly had to statutes pertaining to land use and environmental law.
Prize_Consequence568@reddit
Ask a law or justice subreddit.
duke_awapuhi@reddit
Go to r/ Ask Lawyers. They’re pretty much all Americans in there
thisemmereffer@reddit
Because of the way our government was founded. Three coequal branches of government. The legislature, congress, writes the law. The executive branch, the president and the people employed under him enforces it. The judiciary interpets it, decides if the law is within the bounds of the constitution and whether the executive branch is enforcing it as it was intended and within the bounds of the constitution. If the law wasn't codified it would put too much power to the executive and judicial branches
harlemjd@reddit
Both criminal and civil law codes exist in all states and at the federal level.
Both the criminal code and the civil code have areas of ambiguity that get interpreted by judges.
SerDankTheTall@reddit
Both of the premises of your question is wrong.
Although the details vary from state to state, statutes govern most areas of law (although of course those statutes are applied and interpreted by courts in specific cases). On the other hand, a number of states continue to have common-law crimes and defenses.
MonsieurRuffles@reddit
Yeah, OP’s understanding of the US legal system is way off.
There are state statutes and regulations, not to mention federal ones, that are codified in large multi-volume sets. Statutes are regularly revised and updated by legislatures and executive branch agencies exist to promulgate and enforce regulations based on those statutes.
Mediocre_Daikon6935@reddit
And of course, we also still have common law.
Scavgraphics@reddit
Fun fact, lot of books you see in TV shows are those law books, because easy, cheap, and legal clearance isn't need for them.
ucbiker@reddit
The coffee shop at the Virgin Hotel in New Orleans is library-themed and is full of casebooks, probably because they’re beautifully bound but you can’t give them away lol.
clairejv@reddit
Yeah, common law still has an influence, but a lot of it has been replaced (e.g. the UCC).
Anthrodiva@reddit
Better r/askahistorian
big_sugi@reddit
Not an actual sub, afaik.
r/askhistorians is, though.
SheketBevakaSTFU@reddit
The premise of your question is wrong. Try r/ask_lawyers for explanations.
Dingbatdingbat@reddit
It’s not just criminal. While it varies by state, most laws have been codified by now.
SonUnforseenByFrodo@reddit
Common Law is no longer the law of the land. I think maybe one state still uses it. It only exists in case law.
Tucolair@reddit
At the trial court level, the criminal-legal system is an island of civil code in a sea of common law. However, it is still heavily influenced by common law.
Once a case is appealed to a higher court, it’s all about common law. And when a higher court judge makes a ruling that sets a new precedent, that influences the criminal legal system and all new cases.
That’s why when police arrest AND intend to question someone, they read you your Miranda Rights. In California, if a prosecutor files new charges, originated from the same incident that had already been adjudicated, your attorney can file a Kellet Motion. If a prosecutor brings charges within the statute of limitations but years after the fact and the evidence has largely faded with time, your attorney can file a Serna Motion to dismiss the case.
So while criminal laws are very clear and well defined statutes, every step of the criminal-legal system is influenced by common law decisions made in appellate or supreme courts. From the investigation through arrest through the prosecutor’s charging decision through the pre trial stage, during a trial itself, and right up through jury instructions, a defense attorney can argue that the defendant’s constitutional rights are being violated and they can cite past common law decisions (and the prosecutor can contest the defense’s claim, and the trial court judge makes a decision either way BTW that trial court judge’s decision can be appealed, once again, creating more common law, that influences criminal law.)
So while the criminal laws are created and codified by legislatures and are very precise and Napoleonic in nature; as soon as an actual case arises, the common law, derived from past criminal appellate cases, informs and guides the entire process.
ophaus@reddit
So... This question is even more complicated than you think. Every state handles their laws differently, and each county and city have their own laws as well. There is a lot of overlap, but the differences can't be ignored.
DrBlankslate@reddit
This isn't the right sub for this question.
machagogo@reddit
Tbe basis of your premise is incorrect. I am not a legal scholar so i would do you a severe injustice trying to explain in a proper way it all shakes out.
You should probably go to a legal subreddit and ask for an elia5 to get a proper answer.
MuchDevelopment7084@reddit
r/law will be the place to ask this question.
Lamballama@reddit
It's almost all statutory law - you can't run a modern state without writing things down. Our common law lives almost exclusively through legal precedent, but that's all determining legal procedure and what law is allowed to be written when
SabresBills69@reddit
State vs fed criminal codes....
Generally thus has to do with what is state jurisdiction vs federal jurisfiction.federsl gets involved when issues cross state lines like you live in kne state and you buy a product online based in another state. Some areas like interstate commerce, air travel, mail service is governed by the fed govt because it creates universal baseline laws to allow thjnfs to function just like a currency us us govt issued.
States focus on laws thst are local just to their stsye or states have leeway to regulate thjngs thst fed govt doesn't touch or they can add onto thst baseline law of the fed govt.
In the cknstitution it states what things are go earned by the fed givt. Those mot mentioned are governed by the state.
Arcangl86@reddit
It's because of the 5th and 14th Amendments' due process protections. I can't remember the case, but the Supreme Court has determined that due process in criminal matters requires clear public notice of what behavior is prohibited. The way that is done is through codification.
BuddyRoux@reddit
Yikes, what would be the alternative to this kind of law, and hasn’t ex post facto always been a thing ever since lunch time?
FuzzyHasek@reddit
TLDR US Code is just an index/orginazation of Laws since a Law will effect things all over the place. Think of it like double entry vs single entry bookkeeping.
RHS1959@reddit
Lots of law is now codified. The Uniform Commercial Code governs contract law in most business transactions. Tax law, bankruptcy, insurance, land use etc. all have statutes but precedent still applies in a “how have courts interpreted this statute in previous similar situations” manner.
blackjackn@reddit
All kinds of non-criminal law is codified statutory law. Check out the Securities Acts of 1933, Sherman Antitrust Act, Bankruptcy Code, Model Business Corporations Act, Uniform Commercial Code, and state Landlord-Tenant Acts, just to name a few.
It was always planned from the start that state and federal legislatures can depart from the common law or codify into something more concrete.
AtlasThe1st@reddit
Criminal law and common law are not exclusive. The US has heavy reliance on common law, where judges often look to past rulings to assist with decisions. Most countries have criminal law, criminal law just means laws that classify things as crimes. You may be thinking of civil law, where the actual statutes are mostly adhered to to a T, with little wiggle room.
The United states is a common law country, as well as most of the formerly British colonies, whereas most central European countries are civil law.
shelwood46@reddit
We have largely codified both, but as noted, you should probably go to a law subreddit with this.
OhThrowed@reddit
Yeah, this is one that's likely to need a more specialized group answering it.
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