Anaya Nolan
Case law, also referred to as common law, is a law established following a decision made by a judge or group of judges. It is a collection of reported cases that form the body of law within a given jurisdiction. Case law is based on precedents, or judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. In civil law, case law is developed by academics rather than judges, as civil law courts historically issue brief decisions that are not amenable to establishing precedent. However, in common law systems, case law plays a significant role in shaping the legal system and ensuring it evolves when necessary.
| Characteristics | Values |
|---|---|
| Basis | Case law is based on precedents, i.e., judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. |
| Sources | Sources of case law include reported cases, judicial opinions, and legal scholarship. |
| Development | Case law is developed by interpreting and applying existing laws to specific situations and clarifying them when necessary. |
| Influence | Case law influences the criteria that a jury uses to interpret a case. |
| Role in common law systems | Common law systems follow the doctrine of stare decisis, which means that most courts are bound by their own previous decisions in similar cases. |
| Role in civil law systems | In civil law systems, case law is established through the judicial decisions of courts. It helps to resolve any ambiguity and allows for nuance to be incorporated into common law. |
| Evolution | Case law evolves over time, and past decisions may be modified or overturned if they are outdated or inconsistent with current societal norms. |
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What You'll Learn
Civil law vs common law
Civil law and common law, or case law, are two distinct systems of law. Civil law is a comprehensive, codified set of legal statutes created by legislators. It clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. Judicial authorities use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions. Common law, on the other hand, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries.
The role of case law in civil law systems is somewhat different from its role in common law systems. In civil law traditions, court decisions are historically brief and not formally amenable to establishing precedent. As such, much of the exposition of the law in civil law traditions is done by academics rather than judges, and this is called doctrine. Civil law systems are found in countries like France, Germany, Japan, and China.
In common law systems, such as those in the United States, England, and former British colonies, case law plays a significant role. Common law relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a particular case. Instead, the judge presiding over a case determines which precedents apply. Common law systems follow the doctrine of stare decisis, which means that most courts are bound by their own previous decisions in similar cases. According to stare decisis, all lower courts should make decisions consistent with the previous decisions of higher courts.
While civil law is regularly updated, the goal of standardized codes is to create order and reduce bias in the system. Similarly, common law aims to establish consistent outcomes by applying the same standards of interpretation. However, because common law draws from institutionalized opinions and interpretations, elements of common law may differ between districts. Historically, the traditions of common law have led to unfair marginalization or disempowerment of certain groups, and past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent.
In summary, civil law and common law differ in their sources of law, with civil law relying on codified statutes created by legislators, and common law relying on legal precedents established by the courts. Case law plays a more significant role in common law systems, where it helps to shape the law and ensure consistency in court rulings. In civil law systems, case law is less prominent, and academics play a larger role in interpreting the law.
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The role of judges
In civil law, judges interpret and apply the conditions in the applicable civil code to the facts of each case, making legislative decisions. They are guided by the principle of stare decisis, which means "let the decision stand". This means that judges are bound by past decisions or precedents, drawing on established judicial authority to formulate their positions. Lower courts follow the decisions of higher courts, and this system promotes stability and consistency in the legal system. However, lower courts can deviate from precedents if they are outdated or if the current case is substantially different.
In common law systems, judges play a more significant role in shaping the law. Common law is a body of unwritten laws based on legal precedents established by the courts. Judges interpret statutes and apply precedents, which are the judicial decisions from previous cases, to the case at hand. They determine which precedents apply to a particular case, and these precedents guide how future similar cases will be decided. Judges can refer to various types of persuasive authority when deciding a case, including the published work of academics, legal encyclopedias, and the work of law reform bodies.
In some civil law systems, such as in Sweden, case law plays a more important role. The highest courts can set precedent, which is binding in practice, although not formally, on all future applications of the law.
Overall, the role of judges in civil law is to apply the codified laws created by legislators, whereas in common law systems, judges play a larger role in shaping the law through their interpretation of statutes and application of precedents.
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Academics and case law
In civil law traditions, court decisions are often brief and not amenable to establishing precedent. Therefore, academics play a significant role in the exposition of the law. This process is called doctrine and is published in treatises or journals. For instance, in France, academic expositions of the law are published in journals such as Recueil Dalloz.
Historically, common law courts relied little on legal scholarship. Hence, it was uncommon to see an academic writer quoted in a legal decision, except for the academic writings of prominent judges such as Coke and Blackstone. However, in modern times, academic writers are frequently cited in legal arguments and decisions as persuasive authority. Judges may refer to academic writers when they are attempting to implement reasoning that other courts have not yet adopted or when they find the academic's restatement of the law more compelling than existing case law.
Academic writers are also often cited when a judge believes that developments or trends in legal reasoning render the precedent unhelpful and wishes to help the law evolve. In such cases, the judge may hold that the precedent is inconsistent with subsequent authority or that it should be distinguished by some material difference between the facts of the cases.
Overall, the role of academics in civil law is crucial for the development and evolution of the law, as they provide persuasive authority and help shape the direction of the law.
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Precedent and stare decisis
Case law is a law that is established following a decision made by a judge or judges. Case law is developed by interpreting and applying existing laws to a specific situation and clarifying them when necessary. This process then sets a legal precedent that other courts are required to follow, guiding future rulings and interpretations of a particular law.
Stare decisis is a foundational concept in the American legal system, derived from the English common law of the eighteenth century. The Latin phrase "stare decisis" translates to "let the decision stand" or "to stand by things decided". It is the doctrine that courts will adhere to precedent in making their decisions. According to stare decisis, judges are bound by past decisions or precedents, drawing on established judicial authority to formulate their rulings. This doctrine promotes consistency and predictability in the law, fostering reliance on judicial decisions and contributing to the integrity of the judicial process.
Stare decisis operates through vertical and horizontal applications. Vertical stare decisis dictates that the decisions of higher courts take precedence over those of lower courts, while horizontal stare decisis holds that prior decisions made by courts at the same appellate level should serve as precedents for similar cases in the future. For example, in England, the High Court and the Court of Appeals are bound by their previous decisions, while the Supreme Court may deviate from its earlier rulings, although it rarely does so in practice.
While stare decisis provides stability and consistency to the law, it may also impede the advancement of the law as society and its beliefs evolve. In certain situations, judges may offer reasons or legal nuances to avoid following precedents or to overturn prior rulings, particularly when societal changes or new technologies render previous justifications outdated or unjust.
In civil law traditions, court decisions are typically brief and do not formally establish precedent. Therefore, the exposition of the law in these traditions is often done by academics rather than judges, and this is called doctrine. However, some civil law systems, such as those in Nordic countries, do grant their highest courts the right to set precedent, which lower courts generally follow in practice.
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Case law in practice
Case law, also used interchangeably with common law, is a law that is established following a decision made by a judge or a panel of judges. It is a collection of reported cases that form the body of law within a given jurisdiction. Case law is developed by interpreting and applying existing laws to a specific situation and clarifying them when necessary. This process then sets a legal precedent that other courts are required to follow, guiding future rulings and interpretations of a particular law.
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 systems follow the doctrine of stare decisis, by which most courts are bound by their own previous decisions in similar cases. According to stare decisis, all lower courts should make decisions consistent with the previous decisions of higher courts. For example, in England, the High Court and the Court of Appeals are each bound by their own previous decisions. However, since the Practice Statement of 1966, the Supreme Court of the United Kingdom can deviate from its earlier decisions, although it rarely does so.
In civil law systems, court decisions are historically brief and not formally amenable to establishing precedent. Therefore, much of the exposition of the law in civil law traditions is done by academics rather than judges. This is called doctrine and may be published in treatises or journals. For example, in Sweden, the Supreme Court and the Supreme Administrative Court have the right to set precedent, which is in practice (but not formally) binding on all future applications of the law.
Attorneys use published case law as a means to interpret the law. Generally, appellate court decisions that will be used as future precedent are published in sources (case reporters) specific to that court. A law report is generally only written when the case sets a precedent, whereas a transcript is a written record of the court's judgement. Researchers can use annotated codes, digests, and legal encyclopaedies to find cases on a particular topic.
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Frequently asked questions
Case law is a law that is established following a decision made by a judge or judges. It is based on precedents, or the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations.
In civil law, case law helps establish new principles and redefine existing ones. It also helps resolve any ambiguity and allows for nuance to be incorporated. Civil law is a comprehensive, codified set of legal statutes created by legislators, and case law is an important tool for interpreting and applying these statutes.
Common law systems follow the doctrine of stare decisis, which means that most courts are bound by their own previous decisions in similar cases. Lower courts should make decisions consistent with the previous decisions of higher courts.
Case law can be found in case reporters, which are sources specific to a particular court. Annotated codes, such as the United States Code Annotated, provide researchers with citations to case law. Legal encyclopaedias are also a useful resource, as they cover a wide range of topics with footnotes containing citations to relevant case law.
