Case Law: An Overview

Definition and Basis

• Case Law: Also known as common law, is based on judicial decisions and precedents rather than constitutions, statutes, or regulations.
• Precedents: Past judicial decisions that form the basis of case law.
• Stare Decisis: A Latin term meaning "let the decision stand"; it implies that courts are bound by previous decisions.

Distinction from Other Law Forms

• Statutory Law: Laws enacted by legislative bodies.
• Regulatory Law: Rules established by executive agencies based on statutes.
• Application: Case law can apply to ongoing adjudication in areas like criminal proceedings or family law.

Common Law Countries

• Includes the United Kingdom, United States, Canada, Australia, New Zealand, South Africa, Singapore, Ireland, India, Pakistan, Bangladesh, Sri Lanka, Nepal, Bhutan, Israel, and Hong Kong.
• Utilized for judicial decisions of appellate courts, courts of first instance, and agency tribunals.

Function in Common Law Systems

Criminal Cases

• Courts interpret statutes and apply precedents.
• Doctrine of Stare Decisis: Courts are generally bound by their own and higher courts' previous decisions.
• Example: In England, the High Court and Court of Appeals follow this doctrine, but the Supreme Court may deviate occasionally, as in the R v Jogee case.

Appeals and Precedents

• Higher courts don’t have direct oversight over lower courts unless a ruling is appealed.
• If a lower court believes a precedent is outdated, it may express hope for legislative reform or try to distinguish the precedent.
• Appellate courts can review and potentially overrule lower court precedents.

Creation of Case Law

• Common Law Courts: Provide detailed legal rationale with citations of legislation and prior judgments.
• Ratio Decidendi: The necessary analysis that becomes binding precedent.
• Obiter Dicta: Additional analysis serving as persuasive authority but not binding.
• Civil Law Comparison: Decisions are shorter and refer mainly to statutes.

Mixed Legal Systems

• Scots Law, Quebec, Louisiana: Mixed systems influenced by both common and civil law traditions.
• Role of Professors: Greater in civil law systems; in common law, academic writings are increasingly referenced as persuasive authority.

Influence of Scholars and Non-Binding Authorities

• Courts may use encyclopedias or publications like Corpus Juris Secundum as persuasive authority.
• Conflicts in law application may remain unresolved until addressed by a court of last resort.

Regional Variations

• Nordic countries have distinct legal systems where case law plays a significant role, especially in Sweden.
• High courts in Sweden, such as the Supreme Court, set precedents that guide future interpretations without formally binding lower courts.

Related Concepts

• Judicial Activism
• Legal Opinion
• Lists of Case Law
• Precedent

These notes summarize the key aspects of case law, its role in different legal systems, and the impact of precedents on judicial decisions.