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Case law is the collection of past legal decisions written by courts and 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 singl ...

tribunal
s in the course of deciding cases, in which the law was analyzed using these cases to resolve ambiguities for deciding current cases. These past decisions are called "case law", or
precedent A precedent is a principle or rule established in a previous 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 ...
. ''
Stare decisis A precedent is a principle or rule established in a previous 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 ...
''—a Latin phrase meaning "let the decision stand"—is the principle by which judges are bound to such past decisions. These judicial interpretations are distinguished from
statutory law Statutory law or statute law is written law passed by a body of legislature. This is as opposed to Oral law, oral or customary law; or regulatory law promulgated by the Executive (government), executive or common law of the judiciary. Statutes may ...
, which are codes enacted by legislative bodies, and
regulatory law {{Multiple issues, {{unreferenced, date=December 2013 {{Technical, date=May 2020 Regulatory law refers to law promulgated by an executive branch agency under a delegation from a legislature. Discussed at Regulation (law) and Primary and secondary ...
, 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 arbitration, arbiter or judge reviews evidence (law), evidence and argumentation, including legal reasoning set forth by opposing parties or litigants, to come to a decision which determines rights and ...
; for example, criminal proceedings or family law. In
common law In law, common law (also known as judicial precedent or 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. ''Black's Law Dictionary'' is the most-us ...
countries (including the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain,Usage is mixed. The Guardian' and Telegraph' use Britain as a synonym for the United Kingdom. Some prefer to use Britain as shorth ...

United Kingdom
,
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 Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...

United States
,
Canada Canada is a country in the northern part of North America. Its Provinces and territories of Canada, ten provinces and three territories extend from the Atlantic Ocean, Atlantic to the Pacific Ocean, Pacific and northward into the Arctic Oce ...

Canada
,
Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...

Australia
and
New Zealand New Zealand ( mi, Aotearoa ''Aotearoa'' (; commonly pronounced by English English usually refers to: * English language English is a West Germanic languages, West Germanic language first spoken in History of Anglo-Saxon Engl ...

New Zealand
), the term case law is a near-exact synonym for common law. It is used for judicial decisions of selected
appellate court An appellate court, commonly called an ''appeals court'', ''court of appeals'' (American English American English (AmE, AE, AmEng, USEng, en-US), sometimes called United States English or U.S. English, is the set of varieties of the Eng ...
s,
court A court is any person or institution, often as a government A government is the system or group of people governing an organized community, generally a state State may refer to: Arts, entertainment, and media Literature * ''Sta ...

court
s of
first instance A trial court or court of first instance is a court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and carry out the administ ...
, 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 or 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. ''Black's Law Dictionary'' is the most-us ...
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 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 ...
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 A precedent is a principle or rule established in a previous 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 ...
, 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 High court usually refers to the superior court In common law systems, a superior court is a court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between ...

High Court
and the
Court of Appeal An appellate court, commonly called an ''appeals court'', ''court of appeals'' (American English American English (AmE, AE, AmEng, USEng, en-US), sometimes called United States English or U.S. English, is the set of varieties of the Engl ...
s are each bound by their own previous decisions, however, since 1966 the
Supreme Court of the United Kingdom The Supreme Court (initialism An acronym is a word In linguistics, a word of a spoken language can be defined as the smallest sequence of phonemes that can be uttered in isolation with semantic, objective or pragmatics, practical ...
can deviate from its earlier decisions, although in practice it rarely does. A notable example of when the court has overturned its precedent is, in 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 f ...
; where the Supreme Court of the United Kingdom ruled that they 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
appeal In law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described ...
ed, 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 of England and Wales in 1923 and became a in 1938. Denning became a judge in 1944 when he was appointed to the of t ...
, first of the
High Court of Justice The High Court of Justice in London London is the capital city, capital and List of urban areas in the United Kingdom, largest city of England and the United Kingdom. The city stands on the River Thames in the south-east of England, at th ...
, later of the
Court of Appeal An appellate court, commonly called an ''appeals court'', ''court of appeals'' (American English American English (AmE, AE, AmEng, USEng, en-US), sometimes called United States English or U.S. English, is the set of varieties of the Engl ...
, provided a famous example of this evolutionary process in his development of the concept of
estoppel Estoppel is a judicial device in common law legal systems whereby a court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and ...
starting in the ''High Trees'' case: ''
Central London Property Trust Ltd v. High Trees House Ltd Central is an adjective In linguistics Linguistics is the scientific study of language A language is a structured system of communication used by humans, including speech (spoken language), gestures (Signed language, sign languag ...
''
947 Year 947 ( CMXLVII) was a common year starting on Friday A common year starting on Friday is any non-leap year A leap year (also known as an intercalary year or bissextile year) is a calendar year that contains an additional day (or, in the ...
K.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 Latin (, or , ) is a classical language A classical language is a language A language is a structured system of communication used by humans, including speech ( ...
''), then constitutes a
precedent A precedent is a principle or rule established in a previous 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 ...
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 the Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken in the area aroun ...
'', which constitute
persuasive authority A precedent is a principle or rule established in a previous 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 ...
but are not technically binding. By contrast, decisions in civil law jurisdictions are generally shorter, referring only to
statute A statute is a formal written enactment of a legislative A legislature is an assembly Assembly may refer to: Organisations and meetings * Deliberative assembly A deliberative assembly is a gathering of members (of any kind of collective) ...

statute
s. 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 Scots law () is the legal system The contemporary national legal systems are generally based on one of four basic systems A system is a group of interacting or interrelated elements that act according to a set of rules to form a unified ...
in
Scotland Scotland ( sco, Scotland, gd, Alba Alba (Scottish Gaelic Scottish Gaelic ( gd, Gàidhlig or Scots Gaelic, sometimes referred to simply as Gaelic) is a Goidelic language (in the Celtic languages, Celtic branch of the Indo-European ...

Scotland
and types of civil law jurisdictions in
Quebec ) , image_shield=Armoiries du Québec.svg , image_flag=Flag of Quebec.svg , coordinates= , AdmittanceDate=July 1, 1867 , AdmittanceOrder=1st, with New Brunswick ("Hope restored") , image_map = New Brunswick in Canada 2.svg , ...

Quebec
and
Louisiana Louisiana (Standard French Standard French (in French: ''le français standard'', ''le français normé'', ''le français neutre'' eutral Frenchor ''le français international'' nternational French is an unofficial term for a standard ...

Louisiana
, 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 (also referred to as Anglo-Saxon America) most often refers to a region in the Americas The Americas (also collectively called America) is a landmass comprising the totality of North and South America South America ...
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 An academy (Attic Greek: Ἀκαδήμεια; Koine Greek Ἀκαδημία) is an institution of secondary education, secondary or tertiary education, tertiary higher education, hig ...

professor
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, Wikt:doctrina, doctrina, meaning "teaching, instruction") is a codification (law), codification of beliefs or a body of teacher, teachings or instructions, taught Value (personal and cultural), principles or positions, as the e ...

doctrine
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
Coke
and
Blackstone
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 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 ...
; 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 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 ...
to decide a case. Widely cited non-binding sources include legal
encyclopedia An encyclopedia (American English), encyclopædia (archaic spelling), or encyclopaedia (British English) is a reference work or compendium providing summaries of knowledge either from all branches or from a particular field or discipline. ...
s such as ''
Corpus Juris Secundum ''Corpus Juris Secundum'' (''CJS'') (Meaning, "Second Body of the Law") is an encyclopedia An encyclopedia or encyclopaedia (British English) is a reference work or compendium providing summaries of knowledge either from all branches or from ...
'' and ''
Halsbury's Laws of England ''Halsbury's Laws of England'' is a uniquely comprehensive encyclopaedia of law, and provides the only complete narrative statement of law in England and Wales. It has an alphabetised title scheme covering all areas of law, drawing on authoritie ...
'', or the published work of the Law Commission or the
American Law Institute The American Law Institute (ALI) is a research Research is "creative and systematic work undertaken to increase the stock of knowledge". It involves the collection, organization and analysis of information to increase understanding of a ...
. 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 The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain,Usage is ...
. 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, municipal ...

district
, province, division or appellate department. Usually, only an appeal accepted by the
court of last resort The supreme court is the highest court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and carry out the administration 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 The Nordic countries (also known as the Nordics or ''Norden''; lit. 'the North') are a geographical and cultural region In geography, regions are areas that are broadly divided by physical characteristics (physical geography), human impac ...

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 Sweden ( sv, Sverige ), officially the Kingdom of Sweden ( sv, links=no, Konungariket Sverige ), is a Nordic country The Nordic countries, or the Nordics, are a geographical and cultural region In geography, regions are areas that ...

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 A supreme court is the highest court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and carry out the administration of just ...
(''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

*
Legal opinion In law, a legal opinion is in certain jurisdictions a written explanation by a judge or group of judges that accompanies an Court order, order or ruling in a Legal case, case, laying out the rationale and legal principles for the ruling. Opinion ...
*
Judicial activismJudicial 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 Judicial restraint i ...


References


External links


interactive database of European judgments of national courts in the EU
{{Law ko:판례 ms:Hukum perkara no:Rettspraksis