Cecily Zamora
Case law, also referred to as precedent, is a source of law that operates through a system of binding and persuasive authority. It involves judges interpreting the law by applying previous relevant judgments and wider legal principles to the case at hand. This process, known as ratio decidendi, forms a precedent that is binding on other courts. Case law can be found in case reporters, law journals, academic treatises, and online databases. The validity of case law is contingent on subsequent judicial consideration, as it may be overruled or reversed by higher courts. Appellate courts, for instance, have the authority to review and overrule previous case law, setting new precedents of higher authority. Case law is an essential aspect of the common law system, where the law is expressed in an evolving body of doctrine determined by judges in specific cases.
| Characteristics | Values |
|---|---|
| Case law as a source of law | Decisions in cases, also called "opinions" |
| Judges interpret the law based on precedent | |
| Judges may refer to various types of persuasive authority to decide a case | |
| Common law courts explain the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments | |
| Civil law jurisdictions' decisions are generally shorter, referring only to statutes | |
| Case law can change over time | |
| Case law operates retroactively | |
| Case law is published in case reporters | |
| Attorneys use published case law as a means to interpret the law | |
| Case law is available in print and online |
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What You'll Learn
Judges interpret the law based on precedent
The validity of a distinction between a precedent and a new case may or may not be accepted on appeal to a higher court. An appellate court may also decide on a new analysis that differs from that of junior courts and may or may not be bound by its own previous decisions. Only the reason for the decision of the majority of a court can constitute a binding precedent, but all may be cited as persuasive.
There are some drawbacks to this approach. The facts of the earlier cases will always differ somewhat from the facts in the new case the court is trying to interpret. Another difficulty occurs when the court is faced with a new situation or a new law, and there is no precedent to guide the court. In such cases, judges may refer to various types of persuasive authority to decide a case, including widely cited non-binding sources such as legal encyclopaedias or the published work of the Law Commission or the American Law Institute.
In the civil law tradition, judges are not bound by stare decisis or previous interpretations of legislative codes, and all courts are free to interpret the codes according to generally accepted principles of legal interpretation.
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Primary sources of law
The legislative branch creates laws ("statutes") that are passed and published as statutes. Statutes are a primary source of law in the civil law tradition, which developed in Europe. In civil law jurisdictions, decisions are generally shorter, referring only to statutes. The common law tradition, by contrast, is an evolving body of doctrine determined by judges in specific cases, rather than a group of prescribed abstract principles. In common law systems, judges may interpret the law based on precedent, and their decisions are a source of law.
The judicial branch creates law in the form of decisions, also called "opinions" and "cases," that are published in case reporters. Case law can be found in sources specific to each court, such as the Federal Law section for federal courts. The Oyez Project is a multimedia archive devoted to the Supreme Court of the United States, providing audio recordings and information on justices. Cases are also published in chronological order in books called reporters.
Other sources of case law include transcripts of judgments, which are documents produced by a court that contain the opinion of the judge(s). Transcripts may be the only source of judgment for unreported cases, and many are now available electronically. Case reports, or "law reports," are another source, which reproduce judgments and add supplementary information. There are many different series of law reports published, and similar systems of law reporting operate in other common law jurisdictions.
Attorneys use published case law as a means to interpret the law. Case law can change over time, and lawyers must be able to check whether it has been subject to subsequent judicial consideration.
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Secondary sources of law
Treatises are in-depth, lengthy texts on a particular area of law. They are written by legal experts and provide comprehensive analysis and context. Treatises may be written by a single author or a group of authors with expertise in the field. They are often updated periodically to reflect changes in the law.
Practice guides, on the other hand, are more concise and practical. They provide step-by-step instructions on how to handle specific legal tasks or procedures. Practice guides are designed to be user-friendly, offering checklists, forms, and other tools to assist legal professionals in their work.
Legal encyclopaedias, such as Corpus Juris Secundum and American Jurisprudence 2nd, are collections of brief articles on a wide range of legal topics. These articles are typically arranged alphabetically, making it easy to find information on a specific subject. Legal encyclopaedias often include footnotes with citations to relevant case law and other primary sources.
Law journal articles are scholarly publications that discuss legal topics in depth. They are written by legal academics, practitioners, and students, and they undergo a rigorous peer-review process to ensure their quality and accuracy. Law journals are an important forum for legal analysis and debate, allowing experts to explore emerging issues and complex areas of the law.
These secondary sources of law are valuable for several reasons. Firstly, they provide context and analysis, helping readers understand the broader implications and applications of the law. They can guide legal professionals towards relevant primary sources, saving time and effort in research. Additionally, secondary sources can influence lawmaking and the evolution of legal principles. They reflect the latest thinking and scholarship in the field, and their persuasive authority can shape how judges interpret and apply the law.
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Common law vs civil law
Case law operates as a source of law through the principle of stare decisis, which means "to stand by decisions". This principle dictates that a court must follow and apply the law as set out in the decisions of higher courts in previous cases. In other words, previous court decisions are recognised as legally binding precedents.
Common law and civil law are the two main types of legal systems in the world, with most countries adopting features from one or the other. Common law systems are typically found in countries that were former British colonies or protectorates, including the United States. Common law is less prescriptive than civil law, with fewer provisions implied in a contract. This means that it is important to set out all the terms governing the relationship between the parties in the contract itself. Common law courts generally explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments. The analysis then constitutes a precedent binding on other courts.
Civil law, on the other hand, is rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, with France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is generally more prescriptive than common law, with more provisions implied into a contract. This means that less importance is placed on setting out all the terms in the contract itself, as inadequacies or ambiguities can be resolved by operation of law. Decisions in civil law jurisdictions are generally shorter, referring only to statutes, with the expectation that the reader should be able to deduce the logic from the decision and the statutes. Civil law systems rely on legal codes that function as the primary source of law, rather than judicial precedent.
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The role of academic writers
Academic writers play an important role in the evolution of case law. In common law systems, academic writers are increasingly being cited in legal arguments and decisions as persuasive authority. Judges may refer to academic writers when they are attempting to implement reasoning that has not yet been adopted by other courts or when they find an academic's restatement of the law more compelling than existing case law. Academic writers are also often cited when judges are seeking to implement new reasoning or interpretations of the law that differ from existing precedent. This is particularly common in civil law jurisdictions, where court decisions are typically brief and not amenable to establishing precedent, and academic writers play a larger role in developing case law.
Academic writers can also influence law-making through secondary sources such as treatises, practice guides, legal encyclopaedias, and law journal articles. These secondary sources are used by lawyers and judges to understand and interpret the primary law, and they can point to important statutes and cases that may be relevant to a particular legal issue. In this way, academic writers can help shape the understanding and interpretation of the law, even if their writings are not directly cited in court decisions.
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Frequently asked questions
Case law refers to the legal rules announced in opinions written by appellate judges when deciding appellate cases.
Judges may interpret the law based on precedent. They may refer to various types of persuasive authority, such as legal encyclopaedias, to decide a case.
Stare decisis means "to stand by decisions". This principle means that a court must follow and apply the law as set out in the decisions of higher courts in previous cases.
Case law can be found in case reporters, which are sources specific to each court. Other sources include annotated codes, digests, and legal encyclopaedias.
Case law is a source of both substantive and procedural law. It can directly influence lawmaking and is used by attorneys to interpret the law.
