Talk:Case law

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

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 law

"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 Citation

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 tags

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 example

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 83.219.196.48 (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)