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(a) Case Law
This term refers to the substantive law and procedural rules that have been created by the judiciary through the decisions in the cases they have heard. It is also referred to as the common law.
Central to the concept of the common law/case law is the doctrine of precedent, which means that when a court has to decide an issue, it looks to the previous decisions contained in earlier cases for guidance on how to deal with the present case. Case law operates within the hierarchical structure of the courts system; with the decisions of higher courts binding those courts lower than them in the structure. Courts at the same level are also usually bound, although since 1966 that is no longer the case with the Supreme Court (formerly the House of Lords), which, following the practice statement of that year, can overrule its previous rulings.
The actual part of the previous decision that is binding is the ratio decidendi of the case; that is the legal rule, which led to the decision in the earlier case. The ratio is an abstraction from the facts of the case. Everything else is termed obiter dictum and, although of persuasive authority, does not have to be followed by the later court. As the ratio decidendi of any case is an abstraction from, and is based upon, the material facts of the case, this opens up the possibility that a later court may regard the facts of the case before it as significantly different from the facts of a cited precedent and thus, consequentially, it will not find itself bound to follow that precedent. Judges use this device of distinguishing cases on their facts where, for some reason, they are unwilling to follow a particular precedent.
Various law reports contain details of cases and decisions and it is to those books and cases that lawyers go to find out what the case law is on any particular issue.
There are numerous perceived advantages of the doctrine of precedent, amongst which are:
– Consistency.
– Certainty.
– Efficiency.
– Flexibility.
It is sometimes claimed that judges exceed their constitutional role by making such laws, but others would counter that it is both legitimate and necessary that judges should take an active part in developing the law.