Criminal Law: Common Law vs. Statutory Law


The common law differs from the statutory law as regards the jurisdiction view. Standard rules obtain their authority from a similar case that occurred before and how the court or judge dealt with it, writes Keane (2008). The administration the judges offered in the past for a criminal case finds use in the modern world. In most states and nations, the common law of the colony state, for instance, the British common law in the US, finds use in the present-day justice platform. Statutory law constitutes rules established and scripted by the legislature. A legislator has the power to write down a code, and it becomes a statute. The rules fall below the order of the constitutional law (Chambliss, 2011).

According to Scheb (2011), inchoate crimes can fall into three categories, one being a criminal conspiracy. Criminal conspiracy encompasses variegated entities drawing a plan that entails committing an infraction later. An act of preparation must occur for it to qualify as a punishable crime (Chambliss, 2011). The second category is an attempt to commit a crime, which means any action/s that strongly supports the fact that there was a high intent to commit an offense. Payments for a criminal act, otherwise known as a solicitation, embodies the third facet of inchoate crimes if the payment or payment request is to serve as fraud to motivate a criminal activity. This paper examines the evolution of common law principles into modern bills, highlighting attempted murder and the New York State as the legal region of focus.


Description of the Elements of the Crime under the Historic Common Law

Following independence, many states used their predecessor’s statutes. In the USA, the British common law was found to use. New York State was among other countries that used the law without changes and the earlier jurisdictions but changed later on in the 19th century (Chambliss, 2011). Some of the changes that occurred include the subdivision of homicide to degrees. Other amendments came dependent on the level. Attempted murder relates to killing (Scheb, 2011).

In the common law jurisdiction in historical times, murder was punishable by death. In New York, the origin of this authority originated from the Supreme Court of Pennsylvania in the year 1792 (Chambliss, 2011). It was the affirmative power of Justice Bradford et al. All killing performed with preparations and intent intention with evidence categorically fitted in the first-class homicide felonies. However, attempted murder is different from accomplished death (Keane, 2008). The jurisdiction requires evidence that proves beyond doubt the intent of achieving the crime to punish it lawfully (Scheb, 2011).

Description of the Elements of the Crime Under the Current State Statute

In other crimes other than murder, the evident attempt leads to half the punishment. It occurs when the judge subjects a crime to a definite jail term. However, a guilty murder convict attains life imprisonment in the New York state. Keane (2008) asserts that the punishment is federal and not restricted to the state. It is hard to determine half of a lifetime. Following fear that the party that attempted murder may go back to doing the crime after a jail term, attempted murder became exceptional in the one-half jurisdiction formulae. The punishment for attempted murder is lifetime imprisonment (Scheb, 2011).

Evaluate how the Elements of the Crime Have Changed from the Historic Common Law to the Current State Statutes

Scheb explains that the common law follows past cases of a similar nature with trusted and justified jurisdiction (2011). However, there are chances that similar cases happened in the past, and the judges made different domains, each of them justifiable. In case a current situation happens, of a similar nature, there might be a division in the choice of the earlier jurisdiction (Keane, 2008). The legislature saw it necessary to view justice from fixed perspectives, and the states came in and approved a statutory law, drafted and well-reviewed as the best solution. The best element of common law considered in the making of the legislative constitution is essential since almost all cases have a past occurrence, says Chambliss (2011).

According to Scheb (2011), statutory law leads to consistency in the jurisdiction. Murder and terrorism are of a federal court; however, the state has its opinion on penal codes such as Act 125 of the New York Penal Code, which defines homicide. Associated with murder and attempted murder in this section is the rising form of homicide that is abortion, records Keane (2008). Abortion is a crime when a mother destroys or attempts to kill a foetus of above 24 weeks maturity. In the common law, abortion of any foetus was a crime, as explained by Chambliss (2011). The common law mostly followed norms but failed to understand the implication and reasons pushing to such an occurrence. Currently, in some states, abortion is legal, but in New York state, it is unconstitutional (Scheb, 2011). However, if the mother’s life is in danger, it is legally acceptable to abort the foetus in a relentless bid to save the mother’s life. Only qualified and certified medical practitioners perform the life-saving mission (Keane, 2008).

Discuss Possible Reasons for the Transition Changes

An affirmative case is viable when the person is attempting to commit a crime withdraws at personal will and without pressure or any other external reasons, writes Keane (2008). In such a case, the person can defend him or herself in a court of law and be set free from the charges. External pressure can lead to withdrawal from a crime. If a third party notes someone is poisoning another person, then they withdraw from the offense attempt due to fear of retaining evidence for the act there is no affirmative defense. If the person withdraws from the attempt at the realization that it is not right, then even with evidence the person can defend themself. It is a statute written in constitutions of the New York state but was initially an element of the common law (Scheb, 2011).

Suggest New Changes in the Current State Statutes

Factual impossibility and inherent factual impossibility could be reasons for withdrawal from a crime. In these cases, where there is evidence, the plaintiff cannot defend the position as affirmative withdrawal. Another defense could be a legal impossibility. If the attempted crime is no crime at all, the plaintiff might support their position (Keane, 2008).


The customs and norms found use in the earlier jurisdictions and the law if applied in later cases make common law. It has found use in colonialism, but countries and states are gradually deviating to apply written law in the form of statutory law. Judges find it easier to use such a jurisdiction (written) since it is consistent and revised over to make an excellent dictum (Chambliss, 2011). It helps them avoid mistakes such as arbiter dictum that could have influenced earlier laws. However, there are nations; Canada included, that still have no statutory law in some crimes e.g. crimes concerning tort, as they prefer the early form of passed jurisdiction. The New York state reviewed its legislation to make a statutory law. Some cases like murder and terrorism are an issue of the federal judiciary but the state has its stake in defining terms and recommends punishment, being part of the legislature.


Chambliss, W. (2011). Crime and criminal behaviour. Thousand Oaks, California: Sage.

Keane, A. (2008). The modern law of evidence. Oxford, New York: Oxford University Press.

Scheb, J. (2011). Criminal law and procedure. Belmont, CA: Wadsworth.

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