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Case law, also used interchangeably with
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
, is
law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
that is based on
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
s, that is the
judicial The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
decisions from previous cases, rather than law based on
constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these princ ...
s, statutes, or
regulation Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. Fo ...
s. Case law uses the detailed facts of a
legal case A legal case is in a general sense a dispute between opposing parties which may be resolved by a court, or by some equivalent legal process. A legal case is typically based on either civil or criminal law. In most legal cases there are one or mo ...
that have been resolved by
court A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in acco ...
s or similar
tribunal A tribunal, generally, is any person or institution with authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title. For example, an advocate who appears before a court with a single ...
s. These past decisions are called "case law", or precedent. ''Stare decisis''—a Latin phrase meaning "let the decision stand"—is the principle by which judges are bound to such past decisions, drawing on established judicial authority to formulate their positions. These judicial interpretations are distinguished from
statutory law Statutory law or statute law is written law passed by a body of legislature. This is opposed to oral or customary law; or regulatory law promulgated by the executive or common law of the judiciary. Statutes may originate with national, stat ...
, which are codes enacted by legislative bodies, and
regulatory law Regulatory law refers to secondary legislation, including regulations, promulgated by an executive branch agency under a delegation from a legislature. It contrasts with statutory law promulgated by the legislative branch, and common law or case l ...
, which are established by executive agencies based on statutes. In some jurisdictions, case law can be applied to ongoing
adjudication Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation, including legal reasoning set forth by opposing parties or litigants, to come to a decision which determines rights and obligations between the p ...
; for example, criminal proceedings or family law. In
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
countries (including the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the European mainland, continental mainland. It comprises England, Scotlan ...
,
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...
,
Canada Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
, Australia and
New Zealand New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island count ...
), it is used for judicial decisions of selected
appellate court A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of ...
s,
court A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in acco ...
s of
first instance A trial court or court of first instance is a court having original jurisdiction, in which trials take place. Appeals from the decisions of trial courts are usually made by higher courts with the power of appellate review (appellate courts). Mos ...
, agency tribunals, and other bodies discharging adjudicatory functions.


In common law systems

In the
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
tradition, courts decide the law applicable to a case by interpreting statutes and applying
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
s which record how and why prior cases have been decided. Unlike most civil law systems, 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 1966 the Supreme Court of the United Kingdom can deviate from its earlier decisions, although in practice it rarely does. A notable example of when the court has overturned its precedent is the case of
R v Jogee was a 2016 judgment of the Supreme Court of the United Kingdom that reversed previous case law on joint enterprise. The Supreme Court delivered its ruling jointly with the Judicial Committee of the Privy Council, which was considering an appeal ...
, where the Supreme Court of the United Kingdom ruled that it and the other courts of England and Wales had misapplied the law for nearly 30 years. Generally speaking, higher courts do not have direct oversight over the lower courts of record, in that they cannot reach out on their initiative (''sua sponte'') at any time to overrule judgments of the lower courts. Normally, the burden rests with litigants to appeal rulings (including those in clear violation of established case law) to the higher courts. If a judge acts against precedent, and the case is not appealed, the decision will stand. 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. If the court believes that developments or trends in legal reasoning render the precedent unhelpful, and wishes to evade it and help the law evolve, it may either 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; some jurisdictions allow for a judge to recommend that an appeal be carried out. If that judgment goes to appeal, the appellate court will have the opportunity to review both the precedent and the case under appeal, perhaps overruling the previous case law by setting a new precedent of higher authority. This may happen several times as the case works its way through successive appeals.
Lord Denning Alfred Thompson "Tom" Denning, Baron Denning (23 January 1899 – 5 March 1999) was an English lawyer and judge. He was called to the bar of England and Wales in 1923 and became a King's Counsel in 1938. Denning became a judge in 1944 wh ...
, first of the
High Court of Justice The High Court of Justice in London, known properly as His Majesty's High Court of Justice in England, together with the Court of Appeal and the Crown Court, are the Senior Courts of England and Wales. Its name is abbreviated as EWHC (Englan ...
, later of the Court of Appeal, provided a famous example of this evolutionary process in his development of the concept of estoppel starting in the ''High Trees'' case: ''
Central London Property Trust Ltd v. High Trees House Ltd ''Central London Property Trust Ltd v High Trees House Ltd'' 947KB 130 is a famous English contract law decision in the High Court. It reaffirmed and extended the doctrine of promissory estoppel in contract law in England and Wales. However, th ...
'' 947K.B. 130.


How case law is made

The different roles of case law in civil and common law traditions create differences in the way that courts render decisions. 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. The necessary analysis (called ''
ratio decidendi ''Ratio decidendi'' ( Latin plural ''rationes decidendi'') is a Latin phrase meaning "the reason" or "the rationale for the decision". The ''ratio decidendi'' is "the point in a case that determines the judgement" or "the principle that the case ...
''), then constitutes a
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
binding on other courts; further analyses not strictly necessary to the determination of the current case are called ''
obiter dicta ''Obiter dictum'' (usually used in the plural, ''obiter dicta'') is a Latin phrase meaning "other things said",''Black's Law Dictionary'', p. 967 (5th ed. 1979). that is, a remark in a legal opinion that is "said in passing" by any judge or arbitr ...
'', which constitute
persuasive authority A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great value ...
but are not technically binding. By contrast, decisions in civil law jurisdictions are generally shorter, referring only to statutes . The reason for this difference is that these civil law jurisdictions adhere to a tradition that the reader should be able to deduce the logic from the decision and the statutes Some pluralist systems, such as Scots law in
Scotland Scotland (, ) is a Countries of the United Kingdom, country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a Anglo-Scottish border, border with England to the southeast ...
and types of civil law jurisdictions in
Quebec Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirtee ...
and
Louisiana Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is borde ...
, do not precisely fit into the dual common-civil law system classifications. These types of systems may have been heavily influenced by the
Anglo-America Anglo-America most often refers to a region in the Americas in which English is the main language and British culture and the British Empire have had significant historical, ethnic, linguistic, and cultural impact."Anglo-America", vol. 1, Micro ...
n common law tradition; however, their substantive law is firmly rooted in the civil law tradition. Because of their position between the two main systems of law, these types of legal systems are sometimes referred to as mixed systems of law. Law
professor Professor (commonly abbreviated as Prof.) is an academic rank at universities and other post-secondary education and research institutions in most countries. Literally, ''professor'' derives from Latin as a "person who professes". Professors ...
s traditionally have played a much smaller role in developing case law in common law than professors in civil law. Because court decisions in civil law traditions are historically brief and not formally amenable to establishing precedent, much of the exposition of the law in civil law traditions is done by academics rather than by judges; this is called
doctrine Doctrine (from la, doctrina, meaning "teaching, instruction") is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the essence of teachings in a given branch of knowledge or in a belief syste ...
and may be published in treatises or in journals such as '' Recueil Dalloz'' in France. Historically, common law courts relied little on legal scholarship; thus, at the turn of the twentieth century, it was very rare to see an academic writer quoted in a legal decision (except perhaps for the academic writings of prominent judges such as Coke and Blackstone). Today academic writers are often cited in legal argument and decisions as
persuasive authority A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great value ...
; often, they are cited when judges are attempting to implement reasoning that other courts have not yet adopted, or when the judge believes the academic's restatement of the law is more compelling than can be found in case law. Thus common law systems are adopting one of the approaches long-held in civil law jurisdictions. Judges may refer to various types of
persuasive authority A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great value ...
to decide a case. Widely cited non-binding sources include legal encyclopedias such as ''
Corpus Juris Secundum ''Corpus Juris Secundum'' (''CJS''; Latin for 'Second Body of the Law')Legal Research and Writing for Paralegals, Published by Wolters Kluwer and written by Deborah E. Bouchoux is an encyclopedia of United States law at the federal and state levels ...
'' and '' Halsbury's Laws of England'', or the published work of the
Law Commission A law commission, law reform commission, or law revision commission is an independent body set up by a government to conduct law reform; that is, to consider the state of laws in a jurisdiction and make recommendations or proposals for legal chang ...
or the American Law Institute. Some bodies are given statutory powers to issue guidance with persuasive authority or similar statutory effect, such as the
Highway Code ''The Highway Code'' is a set of information, advice, guides and mandatory rules for road users in the United Kingdom. Its objective is to promote road safety. The ''Highway Code'' applies to all road users including pedestrians, horse riders ...
. In federal or multi-jurisdictional law systems there may exist conflicts between the various lower appellate courts. Sometimes these differences may not be resolved, and it may be necessary to distinguish how the law is applied in one
district A district is a type of administrative division that, in some countries, is managed by the local government. Across the world, areas known as "districts" vary greatly in size, spanning regions or county, counties, several municipality, municipa ...
, province, division or appellate department. Usually, only an appeal accepted by the
court of last resort A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
will resolve such differences and, for many reasons, such appeals are often not granted. Any court may seek to distinguish the present case from that of a binding precedent, to reach a different conclusion. The validity of such a distinction may or may not be accepted on appeal of that judgment to a higher court. An appellate court may also decide on an entirely new and different analysis from that of junior courts, and may or may not be bound by its own previous decisions, or in any case, may distinguish them on the facts. Where there are several members of a court deciding a case, there may be one or more judgments given (or reported). Only the reason for the decision of the majority can constitute a binding precedent, but all may be cited as persuasive, or their reasoning may be adopted in an argument. Apart from the rules of procedure for precedent, the weight given to any reported judgment may depend on the reputation of both the reporter and the judges.


Nordic nations

The legal systems of the Nordic countries are sometimes included among the civil law systems, but as a separate branch, and sometimes counted as separate from the civil law tradition. In Sweden, for instance, case law arguably plays a more important role than in some of the Continental codified law systems. The two highest courts, the Supreme Court (''Högsta domstolen'') and the Supreme Administrative Court (''Högsta förvaltningsdomstolen''), have the right to set precedent which is in practice (however not formally) binding on all future application of the law. Courts of appeal, both general courts (''hovrätter'') and administrative courts (''kammarrätter''), may also issue decisions that act as guides for the application of the law, but these decisions may be overturned by higher courts. Much of the ''case law'' is used to prove the existence of a law and not, unlike many common law jurisdictions, the creation of law.


See also

*
Judicial activism Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...
* Legal opinion *
Lists of case law Lists of case law cover instances of case law, legal decisions in which the law was analyzed to resolve ambiguities for deciding current cases. They are organized alphabetically, by topic or by country. Alphabetical lists These lists are pan-j ...
*
Precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...


References


External links


interactive database of European judgments of national courts in the EU

Queensland Case Law

Queensland Judgments reported and unreported case law
{{Authority control ms:Hukum perkara no:Rettspraksis