Can statutes be ignored in common law systems?

Common law vs. statute law

Common law is judge-made law - it consists of the cumulative, evolving decisions of judges from time immemorial to this day.  Statute law is legislation created by congress, parliament or another legislative body through elected representatives of the people.

Many think it's lawful to ignore statutes in favour of standing at common law alone, or that "harm is required" for there to be a crime.  This is unfortunately incorrect in modern times, when statutes, barring any successful constitutional challenge, are the highest law, interpreted against a backdrop of common law. Any violation of a legal right, whether statutory or remaining at common law, is considered a crime.

Reception of common law

United States

After the American Revolution, all states but Louisiana received common law as their default law.  In the New York Constitution, for example, we find:

§14. Such parts of the common law, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony, on the nineteenth day of April, one thousand seven hundred seventy-five, and the resolutions of the congress of the said colony, and of the convention of the State of New York, in force on the twentieth day of April, one thousand seven hundred seventy-seven, which have not since expired, or been repealed or altered; and such acts of the legislature of this state as are now in force, shall be and continue the law of this state, subject to such alterations as the legislature shall make concerning the same. But all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this constitution, are hereby abrogated.

As we can see common law is the default law but remains subject to the state (and federal) constitution and constitutional legislation.  The courts have no jurisdiction or obligation to ignore statutes or hear anything outside of this system.

Legislative supremacy

In English common law systems, statutes have been superior to common law for hundreds of years.  It was seen fit to hold judges accountable, and not let them decide on a whim how the law should change.

Thomas Jefferson states that statute law became relevant as early as 1215, with the Magna Carta:

"... there is no better instance of the necessity of holding the judges and writers to a declaration of their authorities than the present; where we detect them endeavoring to make law where they found none, and to submit us at one stroke to a whole system, no particle of which has its foundation in the common law. For we know that the common law is that system of law which was introduced by the Saxons on their settlement in England, and altered from time to time by proper legislative authority from that time to the date of Magna Carta, which terminates the period of the common law, or lex non scripta, and commences that of the statute law, or Lex Scripta."

Numerous respected scholars and judges concur:

"The law of the land depends not upon the arbitrary will of any judge; but is permanent, fixed, and unchangeable, unless by authority of parliament.... Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament." ~ William Blackstone (1760)

"Are we to act as regents over what is done in Parliament with the consent of the Queen, Lords and commons? I deny that any such authority exists. If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it: but, so long as it exists as law, the courts are bound to obey it." ~ Lee v Bude & Torrington Junction Rly Co (1871-U.K.)

 "What the statute itself enacts cannot be unlawful, because what the statute says and provides is itself the law, and the highest form of law that is known to this country. It is the law which prevails over every other form of law, and it is not for the court to say that a parliamentary enactment, the highest law in this country, is illegal." ~ Cheney v Conn [Inspector of Taxes] (1968 -U.K.) Chancery Division

"The idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution." ~ Pickin v British Railways Board (1974 -U.K.) HL

"Any presumption, rule of construction, or imputed intention is subject to valid legislative provisions to the contrary. Judges may decline to read such legislation as having such an effect. The more peremptory, arbitrary and unjust the provisions, the less willing a judge may be to impute such a purpose to an Australian lawmaker. But a point will be reached where the law in question is "clear and unambiguous". Various other verbal formulae are used in the reasoning of this Court to describe that point. They are collected by the Court of Appeal in its reasons. Once that point is reached, subject to any constitutional invalidity, the judge has no authority to ignore or frustrate the commands of the lawmaker. To do so would be to abuse judicial power, not to exercise it." ~ Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1

"There is little point in searching for additional expositions of, or foundations for, the principle that courts will presume that legislation does not overrule the common law in the absence of clear and express terms, given that it is so clear and that it was not really contested by the State. In English legal history the principle can be traced back for at least 300 years and probably further. It has been applied countless times in Australia, including in the construction of legislation governing privately owned minerals and the public acquisition thereof. Secondly, the applicant invoked Sir Owen Dixon's reminder that the principle of parliamentary supremacy is itself a doctrine of the common law. Members of a legislature, such as the Parliament of New South Wales, are regularly answerable to the electors, whereas judges in Australia are not. Judges recognise that, whatever the deficiencies of electoral democracy, the necessity of answering to the electorate at regular intervals has a tendency to curb legislative excesses. Many judges reject "the role of a Platonic guardian" and are "pleased to live in a society that does not thrust [that role] upon [them]". Most judges in Australia would probably share this relatively modest conception of their role. In this conception, the duty of obedience to a law made by a Parliament of a State derives from the observance of parliamentary procedures and the conformity of the resulting law with the State and federal Constitutions. It does not rest upon judicial pronouncements to accord, or withhold, recognition of the law in question by reference to the judge's own notions of fundamental rights, apart from those constitutionally established." ~ Durham Holdings Pty Ltd v New South Wales (1999) 47 NSWLR 340

The concept of parliamentary supremacy was thoroughly settled in England in the 1600s.

Related links: Law of the Land, The evolution of Parliament, Parliamentary Sovereignty and the Rule of Law, Reception of common law in Canada, Reception of English Law and the Rules Governing the Administration of the Colonies, The Reception of English Law Abroad, More Reception Statutes