Case law It is a collection of previous legal decisions written by courts and similar judicial bodies in the course of deciding cases, in which the law was analyzed using these cases to solve ambiguities in deciding current cases. These previous decisions are called case law judicial precedent. Stare decisis – a Latin phrase meaning “what has already been established” – is the principle by which judges adhere to such prior decisions. These judicial interpretations are distinguished from Legislative law, which is laws enacted by the legislatures, and regulatory law, which the executive agencies seek based on the laws. In some jurisdictions, case law can be applied to the ongoing judiciary; For example, criminal proceedings or family law.

In Anglo-Saxon legal systems, it is a prior legal case that establishes a principle or rule that is to court Or any other judicial body has the right to benefit from it when there is a case similar in issues and facts. A precedent is defined as “a rule of law established for the first time by a court for a case of a particular kind and thus defining any similar cases.”

in countries Public Law (including United kingdom And the United States and Canada and Australia and New ZealandThe term case law is an almost exact synonym for common law. It is used in judicial decisions issued by Courts of Appeal Selected, first instance courts, agency courts, and other bodies that carry out judicial functions.

in common law systems[عدل]

And in lore Public LawCourts decide the applicable law in a case by interpreting the laws and applying precedent, which records how and why previous cases were decided. In contrast to most civil law systems, common law systems follow the principle of extreme decision-making, to which most courts are bound by their previous decisions in similar cases. According to the decision of the Supreme Court of Justice, all lower courts should make decisions consistent with previous decisions of the higher courts. For example, in England, the Supreme court and the Court of Appeal Both of them are bound by their previous decisions, however, since 1966, they can to the Supreme Court in the Kingdom The United States may deviate from its previous decisions, although it rarely does in practice. A notable example of a court’s reversal of its precedent is, in the case of Mr R v Jogee; The UK Supreme Court ruled that they and other courts in England and Wales had misapplied the law for nearly 30 years.

Generally, the higher courts do not have direct control over the registration courts, as they cannot reach their own initiative (lawsuit) at any time to invalidate the rulings of the lower courts. The burden usually falls on litigants to appeal judgments (including judgments that clearly violate applicable case law) to higher courts. If the judge acts against the precedent and the case is not appealed, the decision will remain.

It is not permissible to court elementary to rule against binding precedent, even if it feels unjust; She may only express the hope that the Supreme Court or the legislature will reform the rule in question. If the court believes that developments or tendencies in legal thinking make precedent unhelpful, and wishes to evade it and help the law to develop, it may decide either that precedent is inconsistent with later authority, or that it must be distinguished by some material difference between the facts of the cases; Some jurisdictions allow the judge to recommend an appeal. If that ruling goes to appeal, the appellate court will have an opportunity to revisit both the precedent and the case under appeal, possibly challenging the previous case law by setting a new precedent for a higher authority. This may happen several times as the case works its way through successive appeals. Lord Dunning, the first High Court of Justice, later of the Court of Appeal, provided a famous example of this evolutionary process in his development of the concept of estoppel which began in High Trees: Central London Estate Ltd v High Trees House Ltd. [1947] KB 130.

How is case law enacted?[عدل]

Create the different roles of case law in traditions civil law and common law Differences in the way courts make their decisions. In general, common law courts explain in detail the legal basis behind their decisions, citing relevant past legislation and rulings, and often interpreting broader legal principles. Then the necessary analysis (which is called “ratio decidendi”, a Latin phrase meaning “the point in the case that determines the judgment”) sets a binding precedent for other courts; Other analyzes that are not strictly required to decide the present case are called dicta dicta, meaning what is said in passing by the judge or his remarks, which constitute persuasive authority but are not technically binding. By contrast, decisions rendered in civil law jurisdictions are generally shorter and refer only to the laws.

Some pluralistic systems, such as the Scots Act in Scotland and the types of civil law jurisdictions in Quebec and louisiana, does not fit neatly into the dual classifications of the civil common law system. These types of systems may have been strongly influenced by the common law tradition Anglo-American; However, its substantive law is rooted in the civil law tradition. Because of their placement between the two major systems of law, these two types of legal systems are sometimes referred to as mixed systems.

Law professors have traditionally played a much smaller role in developing common law case law than civil law professors. Because court decisions in the civil law tradition are historically brief and not formally amenable to precedent, much of the work of law in the civil law tradition is done by academics rather than judges; This is called Jurisprudence It may be published in theses or in journals such as Recueil Dalloz in France. Historically, the common law courts have relied little on legal grants; So at the turn of the twentieth century, it was extremely rare to see an academic writer cite a legal decision (except perhaps in the academic writings of eminent judges such as cook and blackstoneToday’s academic authors are frequently cited in legal arguments and decisions as persuasive authority; It is often invoked by judges when trying to implement rationale that other courts have not yet adopted, or when a judge believes that a reformulation of the law by academics is more convincing than can be found in case law. Thus, common law systems adopt an approach that has long been used in civil law jurisdictions.

Judges may refer to different types of persuasive powers to decide a case. Widely cited non-binding sources include legal encyclopedias such as Corpus Grace Secondum and the Halsbury Laws of England, or published work Law Committee or the American Law Institute. Some bodies are given statutory powers to issue directions with compelling authority or similar legal effect, such as the Highway Code.

In federal or multistate legal systems, disputes may exist between different lower appeals courts. Sometimes these differences may not be resolved, and it may be necessary to distinguish how the law is applied in one county, division, or appeals circuit. Usually, such disputes are not resolved except by the appeal accepted by the court of last resort, and these appeals are often not granted for many reasons.

A court may seek to distinguish the present case from a previous binding case, in order to reach a different conclusion. The validity of this distinction may or may not be accepted on appeal to a higher court. The Court of Appeal may also decide on an analysis that is new and entirely different from that of the trial courts, and may or may not be bound by its own previous decisions, or may, in any case, distinguish them from the facts.

When there are many members deciding a case, there may be one or more judgments (or reported). The reason for the majority decision may set a binding legal precedent, but it may all be cited as persuasive, or its reasoning may be justified by an argument. Regardless of the rules of precedent, the weight given to any reported judgment may depend on the reputation of both the whistleblower and the judges.

Nordic countries[عدل]

legal systems forNordic countries European is sometimes included in civil law systems, but as a separate branch, and is sometimes considered separate from the civil law tradition. In Sweden For example, case law plays a more important role than some continental civil law systems. It is the right of the two highest courts Supreme court (Högsta domstolen) and the Supreme Administrative Court (Högsta förvaltningsdomstolen) set a legal precedent in practice that is binding (but not formal) for all future applications of the law. Courts of appeal, both general courts, mayhovrätter) or administrative courts (cammarrätter), can also issue decisions that serve as evidence for the application of the law, but these decisions can be overturned or overturned by the higher courts. Much of the case law is used to prove the existence of a law and not to create the law, contrary to many common law jurisdictions.

Types of case law[عدل]

binding precedent[عدل]

The judicial precedent that must be applied and followed is known binding precedent. According to principle Stare decisis – or What has already been approved The lower courts must abide by the legal findings of the higher courts. For example, in federal and state courts America Jurisdiction is usually divided geographically between local courts, each reporting to a regional appellate court. All appeals courts, in turn, are subordinate to a supreme court. Thus, the decisions of the lower courts are not applied to the higher courts, and the decisions of the courts of appeal are only applied to the local courts within their geographical scope. This means that lower courts will be bound to apply decisions issued by higher courts to cases with similar facts and issues, unless there is a strong reason to change those decisions.

A law professor says that the binding judicial precedent is not binding unless it is:

1. The issues resolved in the judicial precedent are the same as the issues to be resolved in the current case.
2. Resolving that issue was necessary to settle that precedent,
3. The basic facts of the case law are also present in the present case, and
4. Additional essential facts do not appear in the present case.

In rare cases, a Supreme Court can overturn or reject binding precedent, but usually it will discern precedent before overturning it, thereby reducing the scope of precedent.

in The American judicial system The courts follow a certain hierarchy, in the federal system there is United States Supreme Courtand, in the second instance, lower federal courts. In the states, there is a similar judicial system. In matters of federal law incl US Constitution The Supreme Court will have the final decision. When ruling that Article 1 of the US Constitution applies to defamation cases, all courts are bound by this precedent in their interpretation of Article 1 and its application to defamation cases. And the judges of the lower courts shall be bound to implement this decision even if they oppose it by opinion until the first court changes the rule or in the event that a new law of Congress appears that changes this rule. Although state courts are not affiliated with the federal system, they are bound by the decisions of the Supreme Court of the United States of America in federal cases. As for other federal courts, state courts are generally not bound by their case law.

Compelling precedents[عدل]

Case law that is not binding but useful and relevant is called bCompelling precedents. This type of precedent includes cases settled by lower courts, i.e. decisions of judges of the same rank or judges of superior courts from another geographical region or judges of parallel courts (such as military or administrative courts), and in exceptional cases decisions of judges of other countries, treaties, etc. .

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