Keith Mack
Case law is derived from past decisions made by the courts. It is based on judicial decisions or precedents rather than law based on constitutions, statutes, or regulations. In common law systems, courts decide the law applicable to a case by interpreting statutes and applying precedents. Case law is constantly evolving as courts are always hearing new cases and interpreting the law. In some jurisdictions, case law can be applied to ongoing adjudication, such as criminal proceedings or family law.
| Characteristics | Values |
|---|---|
| Basis of case law | Judicial decisions from previous cases |
| Who interprets the law | Judges at every level of the court system |
| Who establishes case law | Higher courts |
| Who adheres to case law | Lower courts |
| Who cites case law | Attorneys |
| Who plays a smaller role in developing case law | Law professors |
| Who plays a larger role in developing case law | Professors in civil law |
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What You'll Learn
The role of judges
Judges play a crucial role in the creation and application of case law, which is the collection of reported cases that form the body of law within a given jurisdiction. Case law, also known as common law, is based on precedents set by previous judicial decisions rather than laws based on constitutions, statutes, or regulations.
Judges at every level of the court system refer to these precedents when hearing a case. They interpret the law and rule on its constitutionality, ensuring consistency throughout the legal system. Judges are bound by the principle of stare decisis, which means "let the decision stand". This principle dictates that judges must adhere to past decisions made by higher courts in their jurisdiction when formulating their own positions.
In addition to interpreting the law, judges are responsible for overseeing court proceedings and ensuring fairness and impartiality. They ensure that court rules are followed and that only proper evidence is considered. In cases with a jury, judges provide instructions, including explaining the applicable laws and what the jury can consider when making their decision. Judges must also remain above the fray, providing an independent and unbiased assessment of the facts and how the law applies to them.
When writing decisions, judges must master the facts and law and then summarise them concisely without distorting the true picture. This involves careful planning, condensation, and attention to essentials. Judges may refer to various types of persuasive authority, such as legal encyclopaedias or the published work of legal bodies, to support their reasoning.
In some instances, judges may act against precedent if they believe that developments in legal reasoning render it unhelpful. In such cases, they may recommend an appeal to allow a higher court to review and potentially set a new precedent. This evolutionary process allows the law to adapt and evolve over time.
Case Laws: Two Types, One System
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Academic writers' influence
Academic writers have traditionally played a smaller role in developing case law in common law than in civil law. Historically, common law courts relied little on legal scholarship, and it was rare to see an academic writer quoted in a legal decision.
However, in civil law traditions, academic writers play a more significant role in shaping case law. This is because court decisions in civil law are typically brief and not formally binding, allowing academics to provide exposition and commentary on the law through publications such as treatises and journals. In civil law, the academic writings of prominent judges may be cited as persuasive authority.
Today, academic writers in common law systems are also increasingly cited in legal arguments and decisions. Judges may refer to various types of persuasive authority when deciding a case, including legal encyclopaedias, the published work of law commissions, and the writings of academic legal scholars. Academic writers can influence legal reasoning and contribute to the evolution of the law by offering new interpretations and analyses of existing case law.
Academic legal writing combines legal and academic standards, often utilising specific lexico-grammatical choices to make the text more influential and persuasive. This type of writing is commonly found in law reviews or law journals, which publish scholarly articles, case notes, review essays, and other forms of academic legal discourse. Academic writers in law are expected to take a position, provide clear and concise analysis, and demonstrate critical thinking skills when discussing legal topics or analysing case law.
Case Law's Role in Civil Law Explained
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Common law vs civil law
Case law, or common law, is a law based on precedents, or the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Common law systems follow the doctrine of stare decisis, which means that most courts are bound by their own previous decisions in similar cases. Common law systems are less prescriptive than civil law systems, and generally, everything is permitted that is not expressly prohibited by law. Countries that follow a common law system are typically former British colonies or protectorates, including the United States.
Civil law, on the other hand, is a legal system 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. Unlike common law, civil law systems rely on legal codes that function as the primary source of law. Civil law is the world's most common legal system, practiced in about 150 countries. Civil law systems are generally more prescriptive than common law systems, and there are a number of provisions implied into a contract under this system. In a civil law jurisdiction, unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts.
In terms of the role of legal scholars in each system, law professors have traditionally played a much smaller role in developing case law in common law than in civil law. Court decisions in civil law traditions are historically brief and not amenable to establishing precedent, so much of the exposition of the law in civil law traditions is done by academics rather than judges. In common law courts, it was very rare at the turn of the twentieth century to see an academic writer quoted in a legal decision, but today academic writers are often cited in legal arguments and decisions as persuasive authority.
In summary, the key differences between common law and civil law systems are the relative importance placed on precedent, the degree to which the system is prescriptive, and the role of legal scholars in developing case law. Common law systems rely heavily on judicial precedent and are less prescriptive, while civil law systems are characterized by their reliance on legal codes and are generally more prescriptive.
Case Law: Understanding Legal Precedent
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Statutory law vs regulatory law
Case law is based on precedents, or the judicial decisions from previous cases, rather than laws based on constitutions, statutes, or regulations. Case law is derived from the detailed facts of a legal case that has been resolved by courts or similar tribunals.
Statutory laws are written laws enacted by a legislative body of a government, whether federal or state. Statutory laws differ from regulatory, administrative, and common law. Regulatory or administrative laws are passed by executive agencies. Common law is generated through court decisions.
In the context of statutory law, a bill is proposed in the legislature and voted upon. The proposed bill can go through several hearings, edits, and votes before being approved. These processes become the law's legislative history and can be useful when interpreting a law's foundation and purpose. Once approved by both houses of the legislature, the bill passes to the executive branch, and if signed, becomes a law as a statute. If the executive branch declines to sign the bill, it can be vetoed and returned to the legislature. However, in many cases, if the legislature passes the bill a second time by a particular margin, it becomes a statute.
Regulatory law deals with procedures established by federal, state, and local administrative agencies, as opposed to laws created by the legislature (statutory laws) or by court decisions (case law). Regulations can relate to a range of executive branch activities, such as applications for licenses, oversight of environmental laws, and administration of social services. A legislative branch may pass a law authorizing the creation of a new executive branch agency to enforce a specific set of laws. The agency then enacts regulations, which may or may not require legislative approval, and begins to enforce those rules.
In summary, statutory law refers to written laws enacted by legislative bodies, while regulatory law pertains to procedures established by executive agencies based on statutes.
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Federalism and jurisdiction
Federal courts are courts of limited jurisdiction, meaning they can only hear cases authorised by the United States Constitution or federal statutes. The federal district court is the starting point for any case arising under federal statutes, the Constitution, or treaties. This type of jurisdiction is called "original jurisdiction". The jurisdiction of state courts sometimes overlaps with that of federal courts, meaning some cases can be brought in both courts. The plaintiff chooses whether to bring the case in state or federal court. However, if the plaintiff chooses a state court, the defendant may sometimes opt to "remove" the case to federal court.
Federalism, as a term, was first used in the context of US law by Justice Felix Frankfurter in 1939. He introduced the concept as a way to analyse the relationship between state and federal courts. Frankfurter's concept of federalism led to the abstention doctrine, which requires federal courts to sometimes refrain from hearing cases that are within their jurisdiction. This doctrine has been controversial, with some scholars questioning the appropriateness of federal courts refusing to decide a case within their jurisdiction.
The Federal Circuit Court of Appeals has jurisdiction over specific issues, such as patents. Cases may be appealed to the circuit court once the district court has made a decision. Each federal district also has a bankruptcy court for bankruptcy proceedings. Some courts have nationwide jurisdiction for issues such as tax, claims against the federal government, and international trade.
Federal Courts: Cases and Materials on Judicial Federalism and the Lawyering Process is a book that provides a coherent and accessible approach to issues of federalism, separation of powers, and institutional competency. It includes classic Federal Courts cases and lower court decisions addressing issues not resolved by the Supreme Court.
Civil Law and Civil Rights: A Complex Relationship
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Frequently asked questions
Case law is law that is based on judicial decisions rather than law based on constitutions, statutes, or regulations. Case law concerns unique disputes resolved by courts using the concrete facts of a case.
Case law is derived from past decisions made by the courts. Judges at every level of the court system refer to precedents while hearing a case.
Statutory laws are written laws that are passed by the legislature in federal and state governments and adopted by society. Case law, on the other hand, is based on precedents set by previous judicial decisions rather than specific statutes or regulations.
When a court hears arguments from both sides in a case, it will often refer to other rulings and court opinions regarding the law in question before issuing a decision. These existing rulings and legal precedents are collectively called case law.
Researchers can use annotated codes, digests, and legal encyclopaedias to locate case law on a particular topic.
