Gavin Howe
Case law is a law based on precedents, or the judicial decisions of previous cases, rather than laws based on constitutions, statutes, or regulations. In common law systems, courts decide the law applicable to a case by interpreting statutes and applying precedents, which record how and why prior cases have been decided. 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. In civil law systems, on the other hand, there is no doctrine of stare decisis, and civil law codes must be constantly changed because the precedent of courts is not binding and courts lack the authority to act if there is no statute. In the absence of a law prohibiting something, judges have the discretion to determine that a new thing is sufficiently similar to an old thing that a prohibition on the latter encompasses the former.
| Characteristics | Values |
|---|---|
| Nature of law | Case law is based on precedents, or judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. |
| Binding nature | In common law systems, courts are generally bound by stare decisis, meaning they must follow their own previous decisions in similar cases. However, higher courts can overrule the decisions of lower courts by setting new precedents of higher authority. |
| Sources of law | In common law systems, judges may refer to various types of persuasive authority, including academic writings, legal encyclopedias, and the published work of legal institutions. |
| Evolution of law | Case law can evolve as judges interpret and apply precedents to new situations, distinguishing between material differences in the facts of cases. |
| Applicability of new law | If a law changes during a lawsuit, the new law will generally apply to civil cases but may not apply to criminal cases, especially if it increases penalties for a crime, as this would be an invalid ex post facto law. |
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What You'll Learn
Common law systems vs civil law systems
Civil law and common law are the two main types of legal systems in the world. Civil law, rooted in the Roman Empire, is the most common legal system globally, practised in about 150 countries. On the other hand, common law, which originated in medieval England, is prevalent in former British colonies or protectorates, including the United States.
Civil law systems are characterised by their reliance on legal codes as the primary source of law. These codes, such as the Napoleonic Code and the German Bürgerliches Gesetzbuch, comprehensively codify the law and function as a coherent and comprehensive piece of legislation. Civil law is generally more prescriptive, with various codes covering areas such as corporate law, administrative law, tax law, and constitutional law. While civil law judges tend to follow previous judicial decisions, they give less weight to judicial precedent, and their decisions are not binding in the same way as in common law systems.
Common law systems, in contrast, heavily rely on judicial precedent and are based on uncodified case law that arises from judicial decisions. The doctrine of stare decisis, or precedent, is fundamental in common law, where courts interpret statutes and apply past decisions as binding precedent. Common law courts generally provide detailed explanations of their legal rationale, citing legislation and previous judgments, often interpreting wider legal principles. Common law is less prescriptive than civil law, with fewer provisions implied into contracts, and greater emphasis on setting out all terms governing the relationship between parties in a contract.
While civil law and common law systems differ in their approach to precedent and codification, both systems have influenced each other over time. Common law systems have adopted approaches from civil law, such as considering academic writings as persuasive authority, while civil law systems have incorporated aspects of common law in certain contexts, such as in Louisiana's private civil law.
In summary, civil law systems prioritise written codes and legislation, while common law systems emphasise judicial precedent and case law. These differences shape the legal processes and contract interpretations in each system, with civil law being more prescriptive and common law allowing for more flexibility and interpretation by judges.
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Judges' discretionary powers
Judicial discretion refers to a judge's power to make a decision based on their own evaluation, guided by the principles of law. This power is exercised when the legislature allows for it and is an aspect of judicial independence. It allows a judge to decide a legal case or matter within a range of possible decisions. For example, certain penal code provisions sometimes grant courts the discretion to choose between a set of punishments for specific crimes.
Judicial discretion is granted to the courts in recognition of each case's individuality, and decisions should be based on the particular circumstances of the case rather than a rigid application of the law. These decisions must be sound and not arbitrary, meaning they must be made based on what is right and equitable under the circumstances.
Judicial power is never exercised to give effect to the will of the judge but to give effect to the will of the legislature or the will of the law. In some cases, mandatory sentencing laws, such as three-strike laws and sex offender registry laws in the US, do not allow room for sentencing judges to consider the actual gravity of the offence, thus limiting judicial discretion.
In common law systems, courts decide the law applicable to a case by interpreting statutes and applying precedents from previous cases. Common law courts generally explain in detail the legal rationale behind their decisions, with citations of legislation and previous relevant judgments, and interpret wider legal principles. These interpretations are distinguished from statutory law, which are codes enacted by legislative bodies, and regulatory law, established by executive agencies based on statutes.
In civil law systems, such as in France, courts lack authority to act if there is no statute, and there is no doctrine of stare decisis (precedent).
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Binding and non-binding precedents
The doctrine of precedent is a crucial feature of the law in England and Wales, and it is important to understand when past court decisions are binding on subsequent courts. Binding precedent, stare decisis, vertical precedent, and horizontal precedent are interconnected legal concepts that play a vital role in legal reasoning and decision-making.
Binding precedents refer to decisions made by higher courts that lower courts within the same jurisdiction are required to follow in cases with similar facts and legal issues. This doctrine ensures consistency and predictability in the law, prevents lower courts from overturning established legal principles, and provides parties to a lawsuit with certainty about their case outcomes. Lower courts are not bound by persuasive precedent and may depart from it if deemed unpersuasive or inapplicable to the case. Persuasive precedent includes decisions from equal or lower-ranked courts and can influence later cases as judges may consider them.
The ratio decidendi, or the key reason for a court's decision, forms the basis for a court ruling and establishes binding precedent. This is distinct from obiter dicta, which are non-binding observations or comments made by a judge that are unnecessary for resolving the case but may be cited as persuasive authority in future litigation.
In the English Law System, a precedent is a previous court decision that another court must follow in subsequent similar cases. The doctrine of binding precedent originated under the rule of King Henry II, who sent royal commissioners to deal with local issues and legal disputes, creating uniformity in the administration of justice.
The Supreme Court, the highest court in the English Law System, has the power to issue binding precedent through non-binding obiter dicta. While the Supreme Court's decisions are binding on all English courts, the House of Lords, which it replaced in 2009, stated in 1966 that it would no longer consider itself absolutely bound by its precedents.
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Appeals and reviews
The appeals process in common law systems is an important mechanism for reviewing and evolving the law. It allows for the correction of errors and the development of legal principles, with higher courts reviewing the decisions of lower courts and setting precedents that lower courts must follow.
In common law systems, such as in England, the doctrine of stare decisis ("let the decision stand") applies, meaning that courts are generally bound by their own previous decisions and those of higher courts. This promotes consistency and predictability in the law. Lower courts may express disagreement with a binding precedent but must nevertheless apply it, leaving it to higher courts to potentially reform the rule.
When a case is appealed, the appellate court reviews the lower court's decision and the precedent on which it is based. The appellate court may uphold the lower court's decision, finding that it correctly applied the precedent. Alternatively, the appellate court may overrule the lower court by setting a new precedent or distinguishing the case from previous precedent. This evolutionary process allows the law to adapt to changing circumstances and legal reasoning.
For example, in R v Jogee, the Supreme Court of the United Kingdom overturned its own previous precedent, finding that it and other courts had misapplied the law for nearly 30 years. This demonstrates the ability of higher courts to correct errors and evolve the law through the appeals process.
While common law systems give significant weight to stare decisis, they also allow for flexibility and evolution. Judges may refer to persuasive authority, such as academic writings or legal encyclopaedias, to implement novel reasoning or restatements of the law. Additionally, in certain circumstances, higher courts can deviate from their earlier decisions, as the Supreme Court of the United Kingdom has done since the Practice Statement 1966.
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Academic writers as persuasive authority
Academic writers can serve as persuasive authority in law, influencing legal decisions and shaping legal discourse. Persuasive authority refers to sources of law, primary or secondary, that carry weight but do not bind a court. While mandatory authority represents decisions from higher courts in the same jurisdiction, which lower courts are obligated to follow, persuasive authority comes into play when a court's decision is not binding on another.
Academic writers, through their research, analysis, and publication, can contribute to the body of persuasive authority in several ways. Firstly, they can provide insightful interpretations of existing laws and cases, offering new perspectives that may influence legal arguments and decisions. For example, an academic writer might publish a journal article exploring a novel interpretation of a Supreme Court ruling, which attorneys could then cite in their legal briefs to support their arguments.
Secondly, academic writers can fill gaps in the law by proposing solutions to legal issues or ambiguities. For instance, if there is a lack of binding authority on a specific issue in a particular jurisdiction, an academic writer could suggest a potential approach based on persuasive authority from other jurisdictions or analogous legal principles. This could guide attorneys and judges in their decision-making, even though it is not a binding precedent.
Additionally, academic writers can contribute to persuasive authority by conducting empirical research and presenting data-driven insights. For example, a criminology scholar might publish a study on the effectiveness of a particular sentencing practice, which could then be used by prosecutors or defence attorneys to advocate for certain policies or argue for specific sentences in individual cases.
The impact of academic writers as persuasive authority extends beyond the direct citation of their work. Academic writing can also shape legal discourse by introducing new concepts, frameworks, and theories that influence how legal professionals think about and approach legal issues. For example, an academic article might propose a new theoretical framework for understanding a specific area of law, which attorneys and judges could then apply in their legal reasoning and decision-making.
To be effective as persuasive authority, academic writers must exhibit excellent legal writing skills. This includes the ability to conduct thorough research, organize information effectively, and adapt their tone and style to their audience. Academic writers should also be mindful of ethical considerations, ensuring that their work is credible, accurate, and free from biases that could undermine their persuasive authority.
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Frequently asked questions
Not necessarily. Judges have the discretion to say that a "new" thing is sufficiently similar to an "old" thing that a prohibition on the latter encompasses the former.
Stare decisis is a Latin phrase meaning "let the decision stand". It is the principle by which judges are bound to past decisions, drawing on established judicial authority to formulate their positions.
No, a lower court may not rule against a binding precedent, even if it feels that it is unjust. It may only express the hope that a higher court or the legislature will reform the rule in question.
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.
A court cannot change a law but it can overrule previous case law by setting a new precedent of higher authority.
