§ 3.02 Modern Role of the Common Law

§ 3.02 Modern Role of the Common Law⁵

Although the legislative branch of government now has primary lawmaking authority, the common law of crimes remains important to modern lawyers (and, therefore, also law students).

[A] "Reception" Statutes

Most states, often by statute, have abolished common law crimes.⁶ In these jurisdictions, a person may only be convicted and punished for conduct defined as criminal by statute or other legislative enactment.

Some states expressly recognize common law offenses. These states have enacted "reception" statutes, which essentially provide that "[e]very act and omission which is an offense at common law and for which no punishment is prescribed by the [state penal code] may be prosecuted and punished as an offense at common law."⁷ In effect, such a statute "receives" the common law offenses in place at the time of the reception statute's enactment: to the extent that the written criminal code has not dealt with the subject, these crimes become an unwritten part of the state's criminal law, and are defined as they existed at the time of the reception statute's enactment.

As a practical matter, prosecutions of common law offenses in jurisdictions that retain the common law are very rare. Common law crimes, although not abolished in such states, are superseded by statutes prohibiting similar conduct.⁸ A common law prosecution is not possible, therefore, unless there is a true gap in the statutory system, and today there are few lacunae. Nearly all legislatures have enacted statutes encompassing all of the common law felonies and most of the misdemeanors.

A lingering issue in states recognizing common law offenses is whether a court may assert its traditional authority to devise new crimes. The authors of early twentieth-century treatises assumed that this judicial power remained intact, and courts have sometimes exercised such authority.⁹ As well, even in states that expressly prohibit judicial crime creation, one scholar has reported that "we nonetheless see [some] convictions that cannot possibly be explained as anything else."¹⁰ Some courts have maintained that they have authority to expand the definition of existing crimes;¹¹ and some modern courts believe that they are empowered by reception statutes to abolish common law offenses that they consider no longer "compatible with . . . local circumstances and situation."¹²

[B] Statutory Interpretation

Even in states without reception statutes, the common law retains significance. Almost without exception, states have codified the common law felonies and most common law misdemeanors. These statutory offenses are usually defined, at least in part, in common law terms.¹³ A familiar maxim of statutory interpretation is that when a statute contains a common law term, the presumption is that this term retains its common law meaning, absent a statutory definition to the contrary.¹⁴ Therefore, lawyers (and law students) need to be familiar with the common law.

For example, in Keeler v. Superior Court,¹⁵ K learned that his ex-wife was pregnant by another man. He intentionally struck her in the abdomen in order to kill the fetus. The fetus was delivered stillborn. K was prosecuted for...