Talk:Case law

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can anyone tell me the three difference between civil law an common law?Edit

can anyone tell me the three difference between civil law an common law?

I doubt it, since neither "civil law" nor "common law" are very precise (or monosemic) terms. Francis Davey 20:50, 26 August 2005 (UTC)
Quick version as far as case law goes. There are no binding precedents from prior court decisions, ie. stare decisis does not apply. This does not mean civil law courts will not consider cases, merely that all case law is considered persuasive as opposed to binding. This doesn't necessarily change the practice of courts much in a civil law system as so long as the rationale is good enough, judges are likely to follow 'case law', but on a different philoposophical premise than in the common law tradition. If you want more, check out John Henry Merryman's book The Civil Law Tradition from the library. It's in it's second edition.IMHO (talk) 01:57, 14 July 2008 (UTC)

based on the doctrine of precedent in australia, whether the common law is static or instable?

judge-made lawEdit

"Case law (precedential law or black-letter law or decisional law or non-statutory law) is the body of judge-made law"

Isn't this a VERY BAD statement? Judges are not permitted to legislate from the bench and that is exactly what this is indicating.

The constitution deliberately separates the powers and only congress has the power to legislate (make law). Any judge "making law" is violating the separation of powers.

Judges certainly make law in other jurisdictions -- they do in mine. Since this is not a US only page, the separation of powers isn't relevant. Judges here are quite clear about both their power and their desire to make new law. Francis Davey 21:48, 5 May 2006 (UTC)
This is a fallacy. The United States has a common law system, so, by definition there is judge-made law, out of necessity. The formula that judges in the American system "do not make law but only interpret law" is a simplification that should not be taken too literally. American judges do make law, every day, because they have to. Otherwise the legal system would not function. Acsenray 19:24, 31 May 2006 (UTC)
It's bad though. The common people have nothing to do with the judicial system, so the supreme court can make any kind of crazy decisions it wants, no matter what we say. Then again, maybe that's the only way to make progress.. but it's definitely gotten out of hand.
This a statement borne of partisan propaganda. The legal system cannot work if judges do not make law in the form of case law. That is not the same thing as "legislating from the bench."Acsenray (talk) 22:15, 8 March 2010 (UTC)
Not at all has it "gotten out of hand." Brown v. Board of Education was a radical overturning, a rewriting of segregational law established by various state and federal governments over a period of half a century or more. I challenge anyone to say Brown v. Board wasn't necessary. Sometimes, we NEED a body of government unbeholden to public opinion. Once upon a time, this was, on the federal level in the United States, the Senate as well as the judiciary. Now, because the Senate has been opened to popular election, Americans have an immediate suspicion of any government by people without a selfish motive to follow public opinion. The fact of the matter is, though, that for government to truly work, it needs to operate under a certain sense of security; that it can make the difficult, unpopular decisions without fear of reprisals.Benn M. 10:01, 17 June 2007 (UTC)

Regarding this statement:

Isn't this a VERY BAD statement? Judges are not permitted to legislate from the bench and that is exactly what this is indicating.

As editor Acsenray has noted, case law is indeed judge-made law. Contrary to some popular misconceptions, the law of the United States actually comes down to us from English common law, which is judge-made law. Judges in the United States make law every day. It's called "case law" or "precedent".

The popular and oft-repeated statement that "judges should not legislate from the bench" is typically intended to mean that judges should not substitute their own views about what social policy should be for the judgment of the legislature, etc. There is of course an ongoing and valid debate over how "activist" a judge should be, and about how far a judge should go before judicial "interpretion" becomes judicial "legislating." These concerns have been debated by legal scholars and politicians since the founding of the United States of America, and they probably always will be.

But that does not change the fact that, as a formal legal matter in the United States, judges make law, and that law is known as "case law." Famspear (talk) 19:15, 16 April 2008 (UTC)

Example CitationEdit

For the paragraph:

Some judges are also known to rule against precedent on principle. A judge (or even an interim appeal court) may rule against a precedent that is outdated. The judge may feel the decision needs to be overturned due to more sophisticated legal reasoning. Such a judge may wish to help the law evolve by ruling against precedent and thereby indirectly inducing a losing party to appeal. The appeal court will then have an opportunity to review the lower court's decision and may adopt the lower court's reasoning, thereby overturning previous case law. This may also happen several times as the case works its way through intermediate appellate jurisdictions.

Would it be an idea to provide an example? A world-famous example is the Warren court's overturning of Plessy v. Ferguson in Brown v. Board of Education. Benn M. 10:30, 17 June 2007 (UTC)

Check the information in the link you provided. The trial court in the Brown decision ruled in favor of the Topeka Board of Education in what it deemed to be in accordance with Plessy. Your above quote refers to trial judges ruling against a precedent, not the Supreme Court overturning precedent.IMHO (talk) 02:03, 14 July 2008 (UTC)

Cleanup tagsEdit

I don't have time this second to find all the particular tags to cover all the help this article needs (THIS is the version I encountered) but this is what I see as needing work:

  • No references
  • The intro is too technical to enable laypeople to understand the gist of the topic (MoS states that the lede should summarise the topic in simple terms, even if the topic itself is arcane)
  • Inappropriate formatting (notably the random bolding)
  • Perhaps inappropriate wikilinking (see some examples where individual words of a technical term are individually wikilinked, rather than the term itself)
  • Poor writing, particularly in the lede
  • Too much unsupported, random detail in the lede
  • Needs appropriate expansion (references, see also, external links, categories)

Please don't remove the cleanup tag (unless some kind person finds more appropriate tags for the article's problems) without discussing it here. Anchoress · Weigh Anchor · Catacomb 18:44, 16 April 2008 (UTC)

No doubt about, the article needs work. I made a start on the lead section. I haven't even read the article in full yet, and maybe someone else can get to it sooner than I can. Famspear (talk) 19:08, 16 April 2008 (UTC)
Thanks for getting the ball rolling! Anchoress · Weigh Anchor · Catacomb 19:29, 16 April 2008 (UTC)

I'll start working on this. I'm busy, so several days may go by without me touching it. The statement near the beginning on black letter law was slightly inaccurate. Case law and black letter law are not synonymous. Cases may contain black letter law, but they are not, in themselves, black letter law. Judicata (talk) 15:48, 19 April 2008 (UTC)

I made edits throughout. The article is in desperate need of sources. Judicata (talk) 16:34, 19 April 2008 (UTC)
Agree with the need for cleanup/reworking/whathaveyou and have added this subject to the To Do list in Project: Law as well as adding the template for that project above. I think part of the problem is the current focus of the article which goes a lot into compare and contrast with the civil law tradition. Putting aside whether the info is correct, it really shouldn't be the focus of the article, although I have to look at it more closely. It may be more useful in other articles touching on civil law or civil law v. common law.IMHO (talk) 02:22, 14 July 2008 (UTC)
I'd like to propose that we basically completely discard what we have, and replace this with an article on the doctrine of precedent in various countries. Then, if there is anyone competent provide unifying principles found in different legal systems, or contrast major legal systems, that can be provided. Lawdroid (talk) 15:16, 14 February 2009 (UTC)
That sounds like a good approach. The current article isn't the worst exactly, but it's unwieldy due to the broad scope and lack of citations. I'd support stubbifying the commentary about the general topic and rebuilding it as a parent article that serves as a survey of the various wikipedia articles about case law in different systems. I wonder if there is a distinction to be made between case law, opinions, findings, authority, precedent, and other related concepts. Wikidemon (talk) 16:46, 14 February 2009 (UTC)
Just as a first impression, I'd disagree with Lawdroid's approach. The article should not start out as a compare and contrast or, worst, a list. It should start with what case law is and then go on to compare between traditions and systems within tradtions. Any history will probably at least start with the English Common Law as the oldest extant system of case law. Although civil law tradition states such as Germany and such, may have had case law before, I believe it was wiped clean for all of them when they adopted their codes.
Short answers to some of the things you listed Wikidemon: opinions are, in the shortest form, judicial reasoning for a ruling or rulings. They don't have to be published or even written. All cases of precedential value are at least written opinions, but not all opinions have precdential value. Findings, at least in courts in the USA, usually refer to factual findings, and don't affect law so much as determine the situation the law is applied to. Authority and precedent are interchangeable when discussing case law. Authority might also be used when talking about relative authority between sources of law, or which source might "trump" another. So the authority of statute is greater than regulation. That is less a term of art than it is common use of the word.
Case law, as I recently pointed out on the talk page for precedent, is the body of precedents that courts may rely upon in general. I saved this for last because I also wanted to mention that it looks like the article on precedent needs as much cleaning up as this one. Maybe ultimately a merger as well, but it's hard to tell before there is clean up, and quite a bit of it too.
Before I sign off on this, let me explain what I mean when I say tradition and system. I take Merrman's meanings with these words. When I say system, I usually mean the entire judicial and legal function of a specific state, such as France, Germany, USA, as well as the individual states within the USA as the each have independant systems. When I say tradition, I mean an overall style of functioning that these systems may belong to. Usually this means the Common Law tradition and the Civil Law tradition. So, Australian legal system is a Common Law system, that is, a legal system that follows the Common Law tradition. That might seem a bit much effort to explain, but I think it helps prevent the ambiguity of using system interchangeably. IMHO (talk) 19:50, 14 February 2009 (UTC)
So are you suggesting that the article have sections for each of those aspects of case law? If so, that also sounds like a good approach. Lawdroid (talk) 23:54, 14 February 2009 (UTC)
Sorry, I'm not sure which aspects you're referring to, and I recognize that's my own fault for the long post covering different things. If you mean the stuff that answered Wikidemon's list, no. I just answered his questions. If not, let me know which you did mean. Again, sorry for the multitopic post. IMHO (talk) 20:30, 15 February 2009 (UTC)

Outdated exampleEdit

The example in the second paragraph (about the court system in Sweden) is outdated. The highest administrive court changed its name from Regeringsrätten to Högsta Förvaltningsdomstolen in 2010. —Preceding unsigned comment added by (talk) 02:33, 23 March 2011 (UTC)

Please, find a source for this, and make the appropriate change, then. Lawdroid (talk) 15:04, 24 March 2011 (UTC)

Is patent office case law also "case law"?Edit

My reading of the current intro is that "case law" comes from courts.

So, when I compile the decisions of a body such as a patent office, is that not case law?

(When someone talks about "the case law of the Blah Patent Office", is that an error, a slight abuse, or is it correct?) Gronky (talk) 13:34, 27 February 2012 (UTC)

Case law does come from courts. What you're talking about is actually known as administrative law. Sometimes even lawyers will use the term case law to refer to administrative law in the form of published decisions of administrative agencies but that's generally regarded as informal and sloppy. --Coolcaesar (talk) 06:21, 28 February 2012 (UTC)
Coolcaesar - I think you are referring to American usage of "administrative law"; in England, and English-language discussion of European legal systems, "Administrative law" means something completely different. As an English lawyer, I would certainly consider it correct to refer to the "case law" of a patent office, as long as there is some notion of being guided by previous decisions.Lawdroid (talk) 13:35, 28 February 2012 (UTC)
You're probably correct that there's a difference. It goes back to the whole concept of the separation of powers which is drilled into Americans at a young age as one of the methods by which the Founding Fathers of the United States sought to avoid the abuses of power frequently seen under the English crown (which were not addressed until the Representation of the People Acts). In the U.S., we draw a very strong distinction between formal litigation before the judiciary and all other forms of dispute resolution. The idea is that under the separation of powers, only the judiciary has the power to make case law (i.e., to make a binding interpretation of what the law is), under Marbury v. Madison. --Coolcaesar (talk) 15:19, 28 February 2012 (UTC)
I think the issue is perhaps more broad - case law itself is not the same thing as stare decisis or binding precedent. So, decisions of the ECJ are a form of case law, even though they are not binding on anyone (including the ECJ) as a matter of law, except for the referring court in that case. This is so, even though all European states (including the UK) have a reasonably strong framework for the separation of powers (with, perhaps, the exception of certain eastern European states). Lawdroid (talk) 16:34, 28 February 2012 (UTC)
Hmm. To improve the article then, the intro should say that there are two definitions - broad and narrow. I'll be bold and make some changes. Thanks for the clear and interesting comments here. Gronky (talk) 03:01, 2 March 2012 (UTC)
Coolcaesar, Gronky, and Lawdroid -- Chiming in years later -- "case law of the patent office" is not "administrative law." "Administrative law" is the statutes, court decisions, directives from the Executive Office of the President, etc. that govern what executive branch agencies can do, the steps they must take to do it, and the powers of Article III courts to review Executive Branch action. The starting place for "administrative law" is the Administrative Procedure Act. "Case law of the patent office" is decisions written by the Patent Trial and Appeal Board, the Trademark Trial and Appeal Board, and other parts of the Patent Office which the respective tribunals rely on as precedent. The starting place for that is the Patent Act and Trademark Act. So Gronky, yes, "the case law of the Blah Patent Office" is entirely correct and idiomatic. Interestingly, the European Patent Office is quite strongly a "common law" jurisdiction in this sense, even though the ECJ is not! BostonBowTie (talk) 12:32, 24 June 2019 (UTC)

Undid redirectEdit

I've noticed that the user which made the redirect is doing heavy vandalism on Wikipedia, therefore I decided to revert the redirect, despite it was here for very long time.

If anybody want to contest that, please explain why the redirect should be in place. I believe that a user which did the redirect and is vandalising Wikipedia (as seen in his contributions) haven't got consensus about the redirect. Feel free to contest that if I'm mistaken, I'm just a reader and I though this behavior is suspicious, however if it had any merits, please explain so before reinstating the redirect.

Also, the article that this one redirected to, is having links to this place, therefore self-reference occurs, which makes me believe this redirect have no merits to be here. I'm just a reader, so please somebody which does have some reputation here to judge this properly. Somebody with NORMAL nickname, so another reader won't think it's suspicious, thanks. (talk) 18:10, 7 July 2015 (UTC)

I agree that case law and precedent are two somewhat different subjects and should each have their own article. To clarify what happened, that particular editor was named Boundlessly and participated here from 2006 until 2012, when they quit the project in a huff, declaring that they no longer believed in Wikipedia, apparently after getting into some disputes over an article style guideline. Best not to call misguided edits vandalism if they are sincere. Vandalism is reserved for people who are deliberately adding gibberish or deleting stuff in order to deface article content, and people who are still around might object to that accusation. Anyway, the problem with these two articles is that editors from the US and UK are each editing based on their understanding of common law, without teasing apart the differences in how it is conceived from one country to the next. So you have potentially contradictory sentences appearing randomly next to each other that say different things, without any clarification about whether it is supposed to be a global or country-specific statement. For example, in the UK but not the US, regulations are considered a separate source of law, a sort of legislation by the executive side of government. Likewise, administrative tribunals are considered a source of executive common law. In the US, by contrast, regulations are seen as subservient to and a filling out of legislation, and executive tribunals are considered administrative law, which is described as judge-made even if those judges are working in the executive branch of government. I suspect the difference is more a matter of how things are customarily explained than an actual difference in how the law works in the two countries. - Wikidemon (talk) 18:46, 7 July 2015 (UTC), the merge was discussed -- see Talk:Precedent#Merge from case law. The main discussant was Wikidemo--related to Wikidemon?
I think the redirect is much the better course.
This article, as it stands, is a mixture of error, nonsense, and non sequitur. This article needs a lot of work to get it to even minimal correctness.
In contrast, the article on precedent (to which this was redirected) and common law have both come a long way since 2012, and has a correct discussion of the contrasting role of case law in common law and civil law countries. I see nothing in this article that is correct and not covered in precedent.
Wikidemon, your understanding of American law is simply not correct. Your description of UK law is an accurate description of US law (I won't opine on whether it is accurate about the UK -- I don't know.) Your explanation explains similarities between US and UK law, not differences. Thus it is certainty not a sound basis for keeping the two articles separate.
As an application of stare decisis, I am putting the redirect back, to precedent. (talk) 01:35, 11 November 2015 (UTC)
The merge was the correct thing to do in 2012, and the quality of this "case law" article in 2015 confirms that the merge was the correct move in 2012. See the discussion at Talk:Precedent#Merge from case law and the discussion by Wikidemo. (talk) 20:17, 11 November 2015 (UTC)

I agree with the quality issue, and that should be addressed. But both are different things! Most importantly: case law is a concept well known in civil and common law, while precedent is a typically common-law thing. Thus, in order to be able to write about case law, case law repositories etc, we should go beyond the common-law only term... L.tak (talk) 01:37, 1 January 2017 (UTC)

I concur that case law and precedent are distinct concepts, and more importantly, distinct enough that they should be treated as separate articles. --Coolcaesar (talk) 03:38, 2 January 2017 (UTC)

The lede is very poorly writtenEdit

I think the first sentence, "Case laws are previous rulings by tribunals or courts that meet their respective jurisdictions' rules to be cited as precedent that help to decide and interpret current cases," is a run on and needs to be shortened. I could be better written as "Case law is based on precedent, or past cases, and is used to decide and interpret current cases," since that is shorter and less confusing. Also, the rest of the lede needs correcting as well, since the last two sentences both start with "In common law countries" and mean nearly the same thing. Also, I do not think "patent law" is a good example of case law, so the article should just say "The term "case law" is applied in any adjudication process to guide rulings, e.g. criminal proceedings, or family law." Even with that edit, the aforementioned sentence is also confusing, and so is most of the lede. I made some edits, but they were reverted by Jennablurrs7575, who also attempted to protect the page for no good reason, and failed to do so. Jennablurrs7575 tried to give the page extended confirmed (30/500) protection, but obviously does not have the authority to do so. Something needs to be done about this, since currently the lede is confusing and not professional at all. Even if my proposals are not the best wording, the lede definitely needs editing by someone. Bob Roberts 07:40, 15 June 2019 (UTC)

Hello There Bob Roberts.The attempt to protect was stated in edit log, it was done as were page reverts due to your editing. Many editors worked on this before you (or me) to arbitrarily put your view forth as best and brightest flies against WP 5 pilars and MOS. Your "good faith edits" are not WP compliant. They come off as disruptive even if well meaning. Jennablurrs7575 (talk) 08:17, 15 June 2019 (UTC)
Jennablurrs7575 No, they were not disruptive at all. Even if you think they were incorrect, the lede of the article is terrible and needs to be improved. There is a reason that this article is tagged as needing copy editing. Instead of just reverting my edits and "protecting" the page, why don't you improve it? Bob Roberts 08:19, 15 June 2019 (UTC)
BobRoberts We had intervening acts and I didn't want a war so I misguidingly protected, now removed. I have been improving this within framework set by previous editors (that came to a WP: consensus long before me) and other WP rules. You need to be familiar with both before editing. Being bold is awesome but be mindful of how you edit. You have some valued points though. Like second part being repetitive as to common law. Jennablurrs7575 (talk) 09:52, 15 June 2019 (UTC)
Jennablurrs7575 Sorry if my edits seemed disruptive, I was just trying to improve it. Even if they were wrong, the lede still needs to be improved a lot for it to be professional. Bob Roberts 09:53, 15 June 2019 (UTC)
BobRoberts Agreed. Would you like to try together? I'm sorry too, as it does need it. Maybe between us? I got stuck myself. The wording just slays me!! But we are handcuffed in certain ways. At one point I felt like throwing in the PTA behind patent court if we're getting broad with adjudicating...Jennablurrs7575 (talk) 10:13, 15 June 2019 (UTC)
Yeah I would definitely like to help, it's just 6 a.m. where I am and I havent slept yet, so I am going to do that first :). For starters, I think the first sentence could be improved, since it's a run-on in my opinion. Bob Roberts 10:16, 15 June 2019 (UTC)
BobRoberts, Jennablurrs7575 -- I agree with BobRoberts14 in principle. I agree that the current opening sentence is really klunky. Here's another suggestion:
Case law is the collected body of decisions written by courts and similar tribunals in the course of deciding past cases, in which the tribunals analyzed the law to resolve ambiguities and fill gaps to set principled rules for deciding those past cases, to the extent that those past decisions are used by future judges to decide future cases.
I think it's important to capture these ideas in the lede (not necessarily the first sentence, but in the first paragraph), to get the ideas across to the non-lawyer reader:
  • Not all "case law" is precedent. For example, in civil law jurisdictions, where there's no such thing as "precedent," case law is still helpful and instructive, even if not "precedent."
  • What kinds of issues in past decisions are relevant to the future? It's the analysis of what the law is (or should be). (I think "law of the case" is so specialized that it can be glossed over here).
  • I think the second sentence of the lede paragraph is important -- the contrast to statute and regulation is the thing that a non-lawyer reader needs to understand.
  • I like BobRoberts14's sentence better, just as a matter of clean sentence writing. But it oversimplifies a little. Some oversimplifiation is good. Too much is too much.
  • I went back and looked at where we started six weeks ago. The old phrase "for example, patent office case law" captures an important idea that got lost--decisions of executive branch agencies are just as much "case law" as decisions of Article III courts.
But lets look deeper at root cause. The real problem is that this entire article is very weak. I see that "Case law" and "precedent" were combined for a while (2015 to 2016), and during that time "precedent" went from a medium article to a pretty good article. The principle is simple -- when all the love is focused in one place, then things improve. When love is divided, one article gets less love. Then the two were split in 2016. "Case law" has never gotten the attention that "precedent" got, and it's still a very weak runt pig. If it were up to me, we'd take the "other jurisdictions" portion of this article and merge it into "precedent," and then replace this entire article with a redirect to "precedent." (Or vice-versa.) True, there's a hair-split difference between the two concepts, but they're so similar... You can't understand one without understanding the other... And the practical reality is that splitting them into two separate articles has resulted in this being a very weak article.
BostonBowTie (talk) 11:57, 24 June 2019 (UTC)

"Clarification of the law by the court" listed at Redirects for discussionEdit

An editor has asked for a discussion to address the redirect Clarification of the law by the court. Please participate in the redirect discussion if you wish to do so. signed, Rosguill talk 18:18, 21 August 2019 (UTC)

Return to "Case law" page.