THE SOURCES OF THE LEGAL SYSTEMS

Case-law or Common law
- judge-made law -



 
 
 

Case law : The entire collection of published legal decisions of the courts which, because of stare decisis contributes a large part of the legal rules which apply in modern society. If a rule of law cannot be found in written laws, lawyers will often say that it is a rule to be found in "case law". In other words, the rule is not in the statute books but can be found as a principle of law established by a judge in some recorded case. The word jurisprudence has become synonymous for case law.
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We saw in the previous section that statutes can apply to
any combination of the countries of the UK.

However,
England and Wales are part of one and the same jurisdiction
whereas
Scotland and Northern Ireland operate separately.

Although
the systems vary in the contents of their laws
and in their institutions and professions,
the sources of laws are in fact similar in all three jurisdictions.

One of these sources is Common Law.






 

What is common law?
 
 

The legal systems within the UK used to based largely on judge-made law
i.e. law developed through decisions by judges.

This original judge-made law is called "common law" or "case-law" (in the USA mainly).
It rests on the idea of "precedent" to be used by later judges when facing similar types of cases.

Each jurisdiction has consequently developed its own forms of common law;

Scotland's varies from England's for example
and the development of case-law still remains an important source of law.





How does common law operate?
 
 

A statement of law made by a judge in a case can become binding on later judges,
which means it can become the law for everyone to follow.
 
 

Two main factors will determine if a particular pronouncement by a judge (or precedent)
becomes binding on later judges
according to the doctrine of "stare decisis"
or stand by what has previously been decided.

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In the higher courts, a system of official recording and reporting has been in use as early as1865
so that lower courts can refer to their decisions
and apply the resulting common law
which makes the likely outcome of a case quite predictable.

 
 
 
 
 

The reasoning must be a matter pertaining to the law
rather than a factual decision.

In addition, the pronouncement must not be obiter dictum
that is to say, it must be essential to the legal basis for the decisions.
Only the ratio decidendi -reasoning behind the decision- will be binding.
 
 

It will comprise the legal principles and rules which are necessary
to solve the problem before the court.

These rules form the doctrine of precedent
or, to use lawyers’ language, the doctrine of stare decisis.


Precedent has a central role in the common law.


Indeed, it ensures certainty and consistency together with logical progression and development in the law,
notably when statutes do not exist or prove unsatisafctory.

But at the same time, jurisprudence may be considered as rigid and also complex.
And it is sometimes difficult to determine what "the law" on a subject is
as it is scattered across many cases and reports.

Nevertheless, the common law seems to have advantages over codified systems
such as those inherited from the Romans for example.

As a matter of fact, since it is derived from real life cases recorded from the courts
rather than anticipated by lawyers or the body politics
it proves more pragmatic and versatile.




Where to find law reports?

Click for the main reference sites

The Law Reports
and
The Weekly Law Reports

See also

The Industrial Cases Reports Express.
 
 

Here is an explanation of some case citations you might come across
Lamb [1967] 2 QB 981 (this means a case reported in the Law Reports - Queen's Bench Division)

Thabo Meli v The Queen [1954] 1 WLR 228 (a case reported in the Weekly Law Reports);

Thornton [1992] 1 All ER 339 (a case reported in the All England Law Reports).

 
 

Now, in section 4 we saw that statutory laws are the major source of legislation
affecting all the jurisdictions of the UK.

We have just seen that case law coexists with statutory laws.
With two potentially  competing sources of law, one may wonder what happens
when the common law and the statutes are
contradictory.
 

Section 6 will bring some answers to this seemingly ambiguous situation.




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