Sources of Law

Both common law and legislation are sources of law in Canada’s legal system.

Legislation is the written rules. Elected officials from all levels of government create legislation in their jurisdiction.

Common law is the interpretation of legislation by the courts. This is also known as “judge-made law”. Court decisions set a precedent for how courts should decide similar situations in the future.

Common law also includes laws that only exist in the decisions of judges, not written legislation. Over time, the courts refine or change these laws as necessary. Sometimes, the legislature creates legislation to ‘codify’ these laws. Other times, they leave this law to the courts only.

Certain areas of law are not found in legislation, only in legal principles the courts have refined over many years. As a rule of thumb, private law (law that deals with relations and obligations between individuals and organizations) such as the law of contracts, torts, and property mostly comes from common law.

There is legislation that addresses private law. The Residential Tenancies Act deals with rights and obligations between residential landlords and tenants. Likewise, the Consumer Protection Act  has rules that businesses must follow to protect Alberta consumers. Employment, wills and estates, and family law are also other areas of law where there is legislation. The law also comes from common law as the courts must interpret the legislation depending on the situation.

Public law (law that deals with relations and obligations between an individual and the state/government) such as criminal, administrative, and constitutional law, mostly comes from legislation. Public law often comes from both legislation and common law. This is because the courts must interpret the legislation in novel situations.