Cecily Zamora
Case law is a primary source of law. It is the law based on judicial decisions and opinions. Primary sources are the actual law, including constitutions, court cases, statutes, and regulations. They establish the law and are binding. Secondary sources, on the other hand, explain, analyse, and discuss the law but do not establish it. They include books, articles, and legal dictionaries. While secondary sources are useful for legal research and understanding the law, they are not binding on courts. This distinction between primary and secondary sources is essential in legal research and interpretation.
| Characteristics | Values |
|---|---|
| Definition | Primary sources are the law itself, while secondary sources explain, discuss, analyze, interpret, and cite primary sources. |
| Examples | Primary sources include constitutions, statutes, regulations, treaties, and cases. Secondary sources include law journals, legal treatises, legal encyclopedias, and law reviews. |
| Binding | Primary sources establish the law and have a greater influence on legal outcomes. Secondary sources do not establish binding law but can influence its creation and interpretation. |
| Purpose | Primary sources state the law. Secondary sources explain the law and help locate primary sources. |
| Research Process | It is recommended to start the research process with secondary sources to understand the legal principles and then move on to primary sources. |
| Hierarchy | Cases from higher courts are binding on lower courts in the same jurisdiction. The authoritative value of a case depends on the court that delivers the opinion. |
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What You'll Learn
Case law is a primary source
Case law is developed from judicial opinions and decisions over time. Judges' opinions are explanations for why they decided on a particular ruling in a case. These opinions are written after a case is heard and published in books called "reporters." They are also published electronically.
Case law interprets existing law based on specific facts presented to the court. Judges refer to past decisions for guidance when ruling on new cases. The decisions of higher courts are often binding on lower courts in the same jurisdiction when similar issues arise. This principle is known as stare decisis, which means "to stand by things decided" in Latin.
Case law is considered a primary source because it establishes the law. Primary sources have the most significant influence on the outcome of legal issues. While secondary sources can help locate and understand primary sources, they do not establish binding law. They include books, articles, legal dictionaries, encyclopedias, law reviews, and journals that explain, analyze, interpret, and discuss the law.
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Secondary sources explain the law
Legal research materials are divided into two categories: primary sources and secondary sources. Primary sources establish the law and include cases, statutes, regulations, treaties, and constitutions.
Secondary sources, on the other hand, explain the law but do not establish binding law. They include books and articles written about the law, such as legal dictionaries, encyclopaedias, law reviews, journals, and treatises. For example, the book *Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality* discusses a landmark case and its historical context, making it a secondary source.
Secondary sources are crucial in legal research as they help locate primary sources, define legal terminology, and provide context for a better understanding of the law. They can also influence the interpretation and creation of new laws. Law reviews and journals, for instance, often contain articles that summarise legal topics and cite relevant primary and secondary sources, making them excellent resources for expanding legal research.
Treatises, another form of secondary source, provide in-depth analysis of legal subjects, clarifying significant concepts and citing pertinent cases and primary materials. They are often written by legal academics or practitioners, offering comprehensive studies of current topics in law.
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Primary sources establish the law
Case law, or the decisions and opinions of judges, is a primary source. These decisions are based on the interpretation and application of existing laws to specific cases. Judges refer to past decisions when ruling on new cases, particularly those made by higher courts, which are typically binding on lower courts. For instance, the U.S. Supreme Court's decision in Brown v. Board of Education (1954) declared that state laws allowing separate public schools for whites and blacks were unconstitutional, setting a precedent for future cases.
Court cases are published in books called "reporters" and are now also available electronically and in databases. Cases are typically published chronologically and may include a summary of facts, judicial opinions, and the interpretation of statutes and regulations. While trial court decisions are usually not published as they are not binding, appellate court decisions are, as they review the correct application of the law by lower courts.
Constitutions, at both the federal and state levels, are also primary sources. They outline the fundamental principles and rules of a country or state, such as the U.S. Constitution's Fourth Amendment. Statutes, or laws enacted by legislatures, are another primary source. These include federal and state statutes, as well as municipal codes enacted by local councils.
While primary sources establish the law, secondary sources explain, analyse, interpret, and discuss it. Secondary sources do not create binding law but can influence its creation and interpretation. They include legal dictionaries, encyclopaedias, law reviews, journals, treatises, and manuals. These sources are useful for legal research as they provide explanations, cite primary sources, and help locate relevant primary authorities.
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Secondary sources help locate primary law
Legal resources are generally divided into two categories: primary sources and secondary sources. Primary legal sources are the actual law in the form of constitutions, court cases, statutes, and administrative rules and regulations. They establish the law and include cases, statutes, regulations, treaties, and constitutions.
Secondary legal sources, on the other hand, explain, critique, discuss, or help locate primary law. They do not establish binding law but can influence its creation and interpretation. Secondary sources include books, articles, legal dictionaries, legal encyclopedias, law reviews, and journals. For example, a law journal may cover a broad range of topics or be specific to a certain area of law. Articles in law reviews usually include a summary of the legal topic and citations to other secondary and primary legal sources.
Legal dictionaries, such as Black's Law Dictionary, provide definitions of words in their legal sense and may offer examples of their use in a legal context. Legal encyclopedias, such as American Jurisprudence and Corpus Juris Secundum, offer general commentary on federal and state laws and are useful when researching unfamiliar areas of the law.
Other secondary sources include law reviews and journals, legal treatises, and nutshells. Law reviews and journals, such as the Yale Law Journal, publish articles that discuss and analyse the law. Legal treatises are comprehensive publications that provide a detailed exposition of a specific area of law, while nutshells offer concise overviews of legal topics.
In summary, secondary sources are essential in legal research as they help locate, understand, and provide context for primary sources of law. They offer analysis, commentary, and explanations that aid in interpreting and applying the law.
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Primary sources include cases, statutes, regulations, treaties, and constitutions
Legal materials are divided into two broad categories: primary sources and secondary sources. Primary sources establish the law and include cases, statutes, regulations, treaties, and constitutions. These sources are the actual law and have the greatest influence on the outcome of any legal issue.
Cases, also known as case law, are a primary source of law. They are the opinions handed down by courts and are based on judicial decisions. Judges write opinions after hearing a case, explaining their reasoning for deciding the case in a particular way. Case law is usually made by judges in appellate courts, such as the Supreme Court, rather than trial courts. Appellate courts review trial court decisions to ensure the law was applied correctly and their decisions are binding on lower courts in the same jurisdiction.
Statutes are laws enacted by legislatures and are another form of primary source. They are often interpreted and applied by judges in case law. Statutes can be found at both the federal and state levels. For example, the Fourth Amendment to the U.S. Constitution is a primary source statute that protects people from unreasonable searches and seizures.
Regulations, treaties, and constitutions are also considered primary sources. Regulations are rules made by executive branch agencies, while treaties are formal agreements between nations. The constitution is the foundational document of a country, outlining the rights and responsibilities of the government and its citizens.
Secondary sources, on the other hand, explain, analyse, and discuss the law but do not establish binding law. They include books, articles, legal dictionaries, encyclopaedias, law reviews, and journals. While secondary sources do not create the law, they can influence its creation and interpretation. They are useful for legal research as they provide context and help locate primary sources.
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Frequently asked questions
Case law refers to the reported decisions (or "opinions") of courts, which interpret existing law based on a specific set of facts. Judges look to past decisions for guidance in ruling on cases.
Case law is primary law. It is a source that states the actual law.
Primary sources are the actual law in the form of constitutions, court cases, statutes, and administrative rules and regulations.
Secondary sources explain, discuss, analyse, describe, explain, interpret or critique the law. They do not establish binding law but can influence the creation and interpretation of the law.
Secondary sources are very helpful when conducting legal research because they are usually easier to look up and understand than primary sources. They also point towards laws and other primary resources.
