Keith Mack
Case law, also known as common law, is a collection of reported cases that form the body of law within a given jurisdiction. It is based on precedents set by previous judicial decisions and opinions, rather than law based on constitutions, statutes, or regulations. While judges play a crucial role in interpreting and applying case law, the extent of their involvement in creating or writing case law is a subject of debate. Some argue that judges create new laws, especially in hard cases, while others maintain that their role is limited to interpreting and applying existing laws. Judges are bound by the doctrine of stare decisis, which means they must respect and adhere to past decisions and precedents. However, they also have the power to interpret statutes and establish precedents that can shape future legal decisions. The weight given to judicial decisions may depend on the reputation of the judges and the court hierarchy, with higher courts generally carrying more weight in their decisions.
| Characteristics | Values |
|---|---|
| Judges' role in law-making | Judges do not make laws but interpret them to be applied to cases before the courts. Judges can create new laws in "hard cases". |
| Case law | A collection of reported cases that form the body of law within a given jurisdiction. |
| Common law | A law that is based on precedents, or the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. |
| Civil law | Decisions are shorter and refer only to statutes. Civil law jurisdictions adhere to the tradition that the reader should deduce the logic from the decision and the statutes. |
| Common law courts | Explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, and often interpret wider legal principles. |
| Civil law courts | Historically, civil law courts relied little on legal scholarship. |
| Common law systems | Follow the doctrine of stare decisis, by which most courts are bound by their own previous decisions in similar cases. |
| Civil law systems | Decisions are not binding precedent, but all may be cited as persuasive, or their reasoning may be adopted in an argument. |
| Case reporters | All federal and state court systems publish opinions in some form of reporter. |
| Researching case law | Researchers often do not have a case citation and must rely on other sources such as annotated codes, digests, and legal encyclopaedias. |
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What You'll Learn
Judges interpret the law
In common law systems, courts generally provide detailed explanations of the legal rationale behind their decisions, including citations of legislation and previous relevant judgments. This analysis, known as "ratio decidendi", sets a precedent that is binding on other courts. Lower courts are expected to make decisions consistent with the previous decisions of higher courts, contributing to a cohesive legal framework.
However, the interpretation of the law by judges is not without its challenges and controversies. The concept of "judicial activism" highlights the potential for judges to pursue their notions of justice, which may extend beyond the limits of the law. To address this, courts must balance their interpretations with constitutional principles such as equality, socio-economic justice, and the recognition of individual rights.
Additionally, the interpretation of the law can be influenced by the weight of the judge's reputation and the court's hierarchy. Higher courts, such as the Supreme Court, have the authority to deviate from their earlier decisions and set new precedents. Lower courts are then expected to follow the interpretations established by these higher courts, shaping the evolution of legal principles.
While judges interpret the law, they do not have the sole responsibility for creating it. Law professors and academics also play a role, particularly in civil law traditions, where their expositions are considered doctrine. In common law systems, academic writers are increasingly cited in legal arguments and decisions, contributing to the evolution of legal reasoning.
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Judges are bound by precedent
For example, in England, the High Court and the Court of Appeals are each bound by their own previous decisions. However, the Supreme Court of the United Kingdom can deviate from its earlier decisions, although it rarely does so. An example of this was the case of R v Jogee, where the Supreme Court ruled that it and other courts had misapplied the law for nearly 30 years.
In the US, the Supreme Court has developed a large body of judicial decisions that are considered precedents. These precedents inform the Court's future decisions, and subordinate courts within the same system are bound to consider them as such. For example, in Dobbs v. Jackson Women's Health Organization, the Supreme Court overruled Roe v. Wade, with the precedent that abortion is not a personal freedom guaranteed by the Federal Constitution.
In some cases, a judge may believe that an outcome at variance with precedent is required for the sake of justice. In such cases, the judge may distinguish the facts of the individual case on reasoning that does not appear in the binding precedent. On appeal, the appellate court may either adopt the new reasoning or reverse on the basis of precedent.
The doctrine of precedent is one of the most important features of the law in England and Wales, and it can mean the difference between winning and losing a case.
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Judges' opinions are published
In California, all opinions of the California Supreme Court are published in bound volumes called the Official Reports. Some opinions issued by the California Courts of Appeal are certified for publication by the Court of Appeal or ordered published by the Supreme Court because they meet the criteria established in California Rules of Court, rule 8.1105. These opinions are known as "published" or "citable" opinions. The majority of Court of Appeal opinions are not certified for publication and are thus not published in the Official Reports.
The publication of judges' opinions is important for establishing precedent. Common law courts generally explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, and often interpret wider legal principles. This analysis, called ratio decidendi, then constitutes a precedent binding on other courts. Further analyses not strictly necessary to the determination of the current case are called obiter dicta, which constitute persuasive authority but are not technically binding.
The weight given to any reported judgment may depend on the reputation of both the reporter and the judges. In some jurisdictions, case law can be applied to ongoing adjudication, such as criminal proceedings or family law. It is important to note that case law is distinct from statutory law, which is enacted by legislative bodies, and regulatory law, which is established by executive agencies based on statutes.
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Judges' decisions are a source of legal authority
In some jurisdictions, case law can be applied to ongoing adjudication, such as criminal proceedings or family law. Case law is published in periodicals called reporters, and all federal and state court systems publish opinions in some form of a reporter. However, not all case law is published. Generally, only appellate court decisions that will be used as future precedent are published in sources (case reporters) specific to that court. Attorneys use published case law as a means to interpret the law.
Common law courts generally explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, and often interpret the wider legal principles. The necessary analysis, called ratio decidendi, then constitutes a precedent binding on other courts. Further analyses not strictly necessary to the determination of the current case are called obiter dicta, which constitute persuasive authority but are not technically binding.
While it is believed that judges do not make laws, there are three circumstances in which they do. Firstly, Parliament cannot define every term in a statute, so there is a need for the judge to interpret the statute so that it can be applied to the case before the courts. Secondly, in hard cases, judges can and do create new laws. Thirdly, in some cases, judges must be careful while changing decisions or making laws. For example, in R v Dica (2004), the Court of Appeal overruled an earlier case, holding that criminal liability could be imposed on a defendant for infecting another person with HIV.
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Judges' roles in law-making
Judges play a crucial role in law-making, particularly in common law systems, which include English law and U.S. federal law. Common law systems follow the doctrine of stare decisis, a Latin phrase meaning "let the decision stand". This doctrine establishes that judges' decisions in similar previous cases are binding on lower courts. In other words, judges in common law systems are bound by their own past decisions and those of higher courts, creating a body of case law that serves as precedent.
When interpreting the law, judges in common law systems provide detailed explanations of the legal rationale behind their decisions, including citations of relevant legislation and previous judgments. This analysis, called ratio decidendi, constitutes binding precedent for future cases. However, it's important to note that only the majority decision can create a binding precedent, although the reasoning of dissenting judges may still be cited as persuasive. The weight given to a judgment can also depend on the reputation of the judge.
In contrast, civil law systems, such as those in Nordic countries, generally produce shorter court decisions that refer primarily to statutes. In these systems, academics and legal scholars play a more significant role in developing the law, as judges' decisions are not as amenable to establishing precedent. However, even in civil law systems, the highest courts may set precedents that are binding in practice, if not formally.
Regardless of the legal system, judges are responsible for ensuring fair and impartial court proceedings. They provide instructions to juries, rule on the admissibility of evidence, and interpret the law for the jury's application. In bench trials, judges also decide the facts of the case and make rulings. Additionally, judges have the important role of sentencing convicted criminal defendants, using established laws and guidance to determine the appropriate sentence.
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Frequently asked questions
Case law, or common law, is a law based on precedents, or the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations.
Judges do not officially make laws, but they do so in three circumstances. First, when Parliament cannot define every term in a statute, judges interpret the statute so that it can be applied to the case at hand. Second, judges make law when they must choose between conflicting statutes. Third, in "hard cases", judges can and do create new laws.
The principle of stare decisis, meaning "let the decision stand", guides judges to follow past decisions or precedents. Case law uses the detailed facts of a legal case that have been resolved by courts or similar tribunals. These past decisions are called "case law" or "precedent".
Case law is published in periodicals called reporters. All federal and state court systems publish opinions in some form of reporter. Researchers can also use annotated codes, digests, and legal encyclopaedias to find case law.
Civil law decisions are generally brief and not amenable to establishing precedent, so academics play a larger role in developing civil law. Common law courts explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, which then constitute a precedent binding on other courts.
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