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Title: Statutory Law
Authors: Khalil, Asem 
Keywords: Rule of law - Comparative studies;Judicial review - Comparative studies;Constitutional law - Comparative studies;Legislative power;Common law;Constitutional law - Comparative studies;Parliamentary practice;Legislation
Issue Date: 23-Dec-2019
Publisher: Oxford University Press
Abstract: In Roman use, lex refers to a ‘bill which has become a law in consequence of its adoption by the people in comitia’ (Lewis and Short 1055). In contemporary use, statutory law refers to the law made by a legislative body—often, but not necessarily, elected—that many constitutions refer to as ‘parliament’, making it possible to create law by choice and vote instead of being the result of a customary practice or a judge’s decision when reviewing a case. Statutory law is accordingly the law that is enacted by a legislator as lex. What makes it binding is the fact that it is attributable to the state, not necessarily its content. The constitution determines the role expected from statutes in a democracy—which was based on the protection of rights and in particular property rights. Starting with the Weimar Constitution of 1919, this role for statutes was lost. Article 153 of the Constitution of Weimar calls upon the law to discipline the very content of the property right; the legislator has to construct the synthesis of several interests in a single norm (Bilancia 500). The post-Second World War constitutions assign a central role to the parliament among the constitutional organs of the state, and law became the most important political act of the parliament, deemed necessary for a democratic and pluralistic society (ibid. 499–500). Through compromise and consensus-seeking, the parliament is considered as the institution that is capable of making legitimate law, taking into consideration the interests of the people they represent. Legislated law acquires a sense of justice because a person will feel adequately identified with it_(Neville 92)—giving emphasis to individualism as the basis of politics, law, and democracy (ibid. 106–7). Statutory law is relevant in both common law and civil law systems. In many common law countries, where statutes have traditionally had an unenviable reputation (Horack Jr (1937) 41), statutory law has been replaced with time common law as the most important source of law and legal tool (Williams 804). In civil law countries, statutes are the main source of law where judges (and courts) are expected to apply the laws, not make new ones. Statutory law is distinguishable from constitutional law. The first refers to that law which is included in a statute—the name of the enactment that is legislated by the parliament—and the other to the law (constitutional law, formally speaking) which is included in a written constitution. However, most constitutional law in the material sense is really found in statutes (in the formal sense). The fact that the parliament is involved in various forms in the enactment or amendment of the constitution (in the formal sense) shows that modern constitutions are to some extent a special kind of statute and share the characteristics of statutes. The conformity of the statute to the written constitution is the task most constitutions assign to a council or a court, depending on the system of control of constitutionality. While most constitutions empower parliaments with the right to enact statutes, constitutions often enlist basic rights and freedoms which should be respected by state authorities (including the legislator). The author is grateful for the assistance provided by Micheline Deeik and Rania Qadi.
Description: Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law. General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum
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