Cecily Zamora
Case law refers to law based on past judicial decisions and precedents rather than law based on constitutions, statutes, or regulations. The term case law is used interchangeably with common law. The use of case law as one or two words has been a subject of debate, with some sources such as Merriam-Webster using two words, while others like Garner's Dictionary of Legal Usage and Black's Law Dictionary prefer the single-word form.
| Characteristics | Values |
|---|---|
| Number of words | Two words (Merriam-Webster) or one word (Garner's Dictionary of Legal Usage and Black's Law Dictionary) |
| Nature of law | Based on precedents, judicial decisions from previous cases |
| Basis of law | Decisions made by judges in the past |
| Examples | Privacy rights, criminal proceedings, family law |
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'Case law' spelling
The spelling of the term "case law" has been a subject of debate among legal professionals and scholars. While some sources and style guides, such as Merriam-Webster's dictionary, prefer the spelling "case law" as two separate words, others, including Garner's Dictionary of Legal Usage and Black's Law Dictionary, opt for the solidification of the term into one word: "caselaw." This discrepancy has sparked discussions and strong opinions among lawyers and language enthusiasts.
The evolution of certain words from separate words to hyphenated and eventually solidified forms is not uncommon in the English language. For example, the word "today" was initially written as two separate words, "to day," and later became hyphenated ("to-day") before settling into the solid form we use today. Similarly, the term "case law" has undergone a transformation, with some sources favoring the hyphenated form ("case-law") and others advocating for the closed spelling ("caselaw").
The preference for the one-word spelling of "caselaw" is supported by LawProse, which cites the editorial decision to use this form in Garner's Dictionary of Legal Usage and Black's Law Dictionary. On the other hand, the Solicitor General's Style Guide has taken a strong stance against the use of "caselaw," referring to it as a "barbarism" and calling for its "total extirpation." This position has sparked debates on Twitter, with legal professionals and language enthusiasts weighing in on their preferred spelling.
Despite the strong opinions surrounding the spelling of "case law," it is essential to recognize that both "case law" and "caselaw" refer to the same concept. Case law, also known as common law, refers to law based on precedents set by judicial decisions in previous cases rather than laws based on constitutions, statutes, or regulations. It involves the application of detailed facts from past legal cases that have been resolved by courts or similar tribunals.
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Case law vs statutory law
The term "case law" refers to the collection of precedents and authority set by previous judicial decisions on a particular issue or topic. It is also referred to as \"common law\" and is created by a judicial body, such as a court of appeals or a supreme court. Case law is established in court rulings, using precedent – decisions made in previous similar cases – to decide how they will judge a new case.
Statutory law, on the other hand, is created by a legislative body, such as Congress or a state assembly. These laws are prescribed in specific statutes and passed by the legislature. The process of creating statutory law is different from case law, as it must be passed on different levels of government, such as local, state, and/or federal levels, and the specific process of enacting statutory law may vary depending on the jurisdiction.
One key difference between case law and statutory law is that statutes can be overturned later under specific circumstances, such as finding that the statutory law is unconstitutional. Additionally, case law can vary depending on the state, as different states may have different outlooks on particular issues.
In terms of usage, "case law" is the more common spelling, although "caselaw" is also used and appears in some dictionaries.
Both case law and statutory law are crucial to the legal system, and it is important to understand the various types of laws and how they may apply to different situations.
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Case law vs common law
The usage of "case law" as one or two words depends on who you ask. Garner's Dictionary of Legal Usage and Black's Law Dictionary list it as one word, while Merriam-Webster's dictionary spells it as two words. A Twitter war erupted after the Solicitor General's style manual called for the "total extirpation" of the "barbarism" of "caselaw," which went against Black's Law Dictionary.
Now, let's discuss the difference between case law and common law:
Case law refers to the legal principles enunciated and embodied in judicial decisions derived from applying specific areas of law to individual cases. In other words, it is the law established by judicial decisions in cases. Case law plays different roles in civil and common law traditions, influencing how courts make decisions.
In common law systems, courts interpret statutes and apply precedents to determine the law relevant to a case. They follow the doctrine of stare decisis, where courts are generally bound by their previous decisions and those of higher courts in similar cases. Common law courts provide detailed legal rationales for their decisions, citing legislation and past judgments. This analysis, known as ratio decidendi, becomes a precedent for other courts.
On the other hand, civil law jurisdictions, such as Quebec and Louisiana, have shorter decisions, referring primarily to statutes. The reader is expected to deduce the logic from the decision and the statutes. While court decisions in civil law traditions are not traditionally used to establish precedent, academic writers are often cited as persuasive authority, influencing judges' reasoning.
In summary, case law encompasses the legal principles derived from judicial decisions in specific cases, while common law refers to the system where courts interpret statutes and apply precedents to determine the applicable law, adhering to stare decisis. The interplay between case law and common law varies between civil and common law jurisdictions.
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Case law in different jurisdictions
Case law, also used interchangeably with common law, refers to laws based on precedents. These are the judicial decisions from previous cases, rather than laws based on constitutions, statutes, or regulations. Case law uses the detailed facts of a legal case that has been resolved by courts or similar tribunals.
In some jurisdictions, case law can be applied to ongoing adjudication, such as criminal proceedings or family law. For example, in the United States, a lower court may not rule against a binding precedent, even if it feels that it is unjust. However, it may express the hope that a higher court or legislature will reform the rule. If a case is appealed, the appellate court can review both the precedent and the case under appeal and may overrule the previous case law by setting a new precedent.
The role of case law can also vary between common law and civil law traditions. Common law courts generally provide detailed explanations of the legal rationale behind their decisions, including citations of legislation and previous relevant judgments. These decisions then constitute a precedent that is binding on other courts. In contrast, civil law jurisdictions, such as those in Scotland and France, may give more weight to the separation of powers between the judicial and executive branches, allowing individual officials to exercise both powers.
The treatment of case law can also vary depending on the specific jurisdiction within a country. For example, within the United States, some states like California have a system based on common law, while others like Louisiana are based on civil law. Additionally, parties in different jurisdictions may choose the law of another jurisdiction that they believe provides more predictability and simplicity in their contractual relations. For instance, outside the United States, parties in different jurisdictions often choose the law of England and Wales, especially if they are in former British colonies or members of the Commonwealth.
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Case law and precedent
The usage of "case law" as one or two words depends on the style guide being used. Garner's Dictionary of Legal Usage and Black's Law Dictionary use "caselaw" as one word, while Merriam-Webster's dictionary uses the two-word form. The Chicago Manual of Style also prefers the closed spelling of "caselaw".
Case law, or judicial precedent, refers to law that is made by the courts and decided by judges. It operates under 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 by higher courts in previous cases. Case law is an important source of law and can be found in law reports or "case transcripts". These reports include the names of the parties, the hearing date, the judge's name, and the court. They also contain a summary of the relevant facts, the judge's decision, and indexing terms.
When citing case law, it is crucial to understand the ratio decidendi, or the grounds for the decisions made in previous cases, to apply the precedents in a new case. This process involves comparing the facts and legal issues of the current case to those of previous cases to determine the applicable law. It can be a tedious and time-consuming task, requiring thorough research through law books, legal databases, and case law statutes.
Case law plays a significant role in decision-making and aids judicial officers in referring to similar cases. It provides guidance on how to handle specific situations and ensures consistency in the application of the law. Case law can also evolve over time, with courts occasionally overturning or modifying previous decisions based on new circumstances or interpretations of the law.
In conclusion, case law and precedent are integral components of the legal system, providing a framework for judges to make informed decisions and ensuring consistency and fairness in the application of the law. While the terminology of "case law" varies, the concept remains crucial in legal contexts.
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Frequently asked questions
Case law refers to law based on precedents, or the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations.
Case law is commonly written as two separate words. However, some sources, such as Garner's Dictionary of Legal Usage and Black's Law Dictionary, prefer to use the solid compound "caselaw".
Two-syllable noun phrases often start as separate words, then become hyphenated, and eventually solidify into one word. While "case law" has not undergone this entire process, the similar evolution of the word "today" (from "to day" to "to-day" to "today") sets a precedent for solidifying "case law" into "caselaw".
The one-word style is used by sources such as Garner's Dictionary of Legal Usage and Black's Law Dictionary.
The two-word style is used by sources such as Merriam-Webster's dictionary and the Solicitor General's Style Guide.
