Role of case law in Common Law family

1. Introduction.

English and America are exemplary to common law legal systems. In both the two aforementioned systems, precedents (or case law, judge-made law) play a paramount role in the judicial proceedings. In this essay, the author will give readers a brief content on the definition and the role of precedents, as well as the application of precedents in reality.

2. Contents.
   1. Case law – theoretical issues.

The term “case law” (or precedent, judge-made law) comes into existence along with the being of Common Law family, thus, it is obvious that, in order to understand precedent in its intrinsic way, it is necessary to root its origin from the Common Law family (or Common Law tradition).

Common law evolved in England since around the 11th century and was later adopted in the US, Canada, Australia, New Zealand and other countries of the British Commonwealth. The paramount distinction between civil law and common law system is that, whereas civil law system is a codified system, the common law basis are mainly case law, or judge-made law.

“Case law” is an ambiguous expression. It can refer to the hundreds of examples of detailed application of the law to particular cases that a legal system produces every day: decisions that have no significance except in the case in which they are made, for researchers who are interested to find out whether laws are applied in practice as they ought to be in theory, and for people (such as textbook writers) who look for practical illustrations of the theoretical statements that they make. Or it can refer to the possibility that, in certain circumstances, the higher courts of a legal system may, in making decisions in individual cases, actually create law, or authoritatively declare what the law is, in such a way as to compel other courts to reach the same conclusion on a similar issue. Or it can refer to something in between these two extremes: the fact that a judge is likely to follow a decision by another judge on a similar issue if the other judge commands respect and the first judge knows about his or her decision. In general, the author agree with the notion given in Blacks Law Dictionary: “Precedent is the making of law by a court in recognizing and apply new rules while administering justice and a decided case that furnishes a basic for determining later cases involving similar facts or issues”.

From that perspective, it is a conclusion of two main characteristics of case law. First of all, it is created by the judges during the trial proceedings, thus, it has another name as judge-made law. Secondly, the novelty is of the utmost importance when it comes to the establishment of precedents. Normally, the judge have to take into consideration the question of fact and question of law when dealing with a case. Only in the case when the question of law is novel and the command of a new ruling is necessary do the judge take into account the creation of a new case law to resolve the situation.

1. 2. Case law – an indispensable part of Common Law Family.

Precedents play a very significant role in both common law and continental legal systems. In the common law legal system, where precedents can be formally binding on future cases, it is the principle of stare decisis that take control over the judicial decisions in general. Each judge, when deciding a matter before him or her, selects the prior cases on which to rely; no external authority designates precedents. Under stare decisis, every case has the potential of being a precedent in some sense. One part of a decision may have persuasive or even binding authority even if a different part of the decision has been discredited or overturned. Yet only the holding or ratio decidendi of a case can be binding; any remarks unnecessary to the result are non-binding dicta.

A prior case must meet two requirements to be considered binding precedent. First, as compared with the present matter before the judge, the prior case must address the same legal questions as applied to similar facts. The higher the degree of factual similarity, the more weight the judge gives the prior case when deciding the present matter. The degree of similarity of a prior case is therefore often a point of contention between parties to a litigation. Litigants compare and contrast prior cases with their own in briefs submitted to the court. The judge reviews and weighs these arguments but also may conduct his own research into, and analysis of, prior cases.

The second requirement for a case to be considered binding precedent is that it must have been decided by the same court or a superior court within the hierarchy to which the court considering the case belongs. For example, The American federal court system has three tiers: the district courts, the courts of appeals (divided into “circuits” with distinct geographic boundaries), and the U.S. Supreme Court. Each state also has a multi-tiered court system and, if certain jurisdictional requirements are met, the U.S. Supreme Court may review the decisions of the highest court in each state. Each district court thus follows precedents handed down by the Supreme Court and by the court of appeals in the circuit encompassing the district court. Each court of appeals follows its own precedents and precedents handed down by the Supreme Court, but it need not adhere to decisions of courts of appeals in other circuits. A court may consider decisions by other, non-superior courts to be persuasive precedent, however, and follow them if they are well-reasoned and if there is no binding precedent that conflicts.

The doctrine of stare decisis (or, in another word, the application of precedents) confers many benefits on the common law judicial system. At its core, the doctrine protects and respects “the legitimate expectations of those who live under the law.” Stare decisis promotes stability, “represents an element of continuity in law, and is rooted in the psychological need to satisfy reasonable expectations.” Reasonable expectations are particularly compelling in the commercial context, where “contracts or title to property may be premised on a rule established by case law” and a shift in the law could “undermine vested contract and property rights” or undermine related rules upon which people have come to rely.

By safeguarding reliance interests, precedents furthers “a system of justice based on fairness to the individual.” Since it is bound by the pervious case, and thus same decision will be made and equal punishment will be punished for those who loss the case bases on the past cases. Example like Balfour case and Merrit case, where the decision made in Merrit case is bound to the Balfour case. It can be used by lawyers as a reference to create certainty which allow them to advice their client for the probability of winning and losing a case by forecasting the predictable result of the case based on the binding result of the previous case. The predictable result and probability of losing a case allow the client to settle it with privately with peace. If the probability of winning a case is higher, it satisfy the client with higher confident. Example for Balfour case and Merrit case, since there are similar case occurred in the past, the lawyer can actually based on the previous case advice Miss Merrit about the percentage of winning the case.

Furthermore, using case law as a source of law enables the judgment of the case to be settling in short period because of the binding precedent which is much more efficient. Shorter period of settling a case will reduce the legal cost paid by the client. Example for Balfour case and Merrit case, since there are similar facts between both cases, therefore less time and cost needed for judging that case. Using binding precedent concept, it totally avoid discrimination whereby the The personality of judges will not influence the outcome of dispute in court as the decision made by the judges is bound to follow previous decisions. Whether they are discrimination between the judges towards the plaintiff or defendant, the judges still have to follow the binding decisions. Example for the Merrit case, if the judges know the plaintiff, the decision made will be still bound with the Balfour case. This can provide a fair judgment of case for either defendant or plaintiff.