Evaluating Case Law

Case Law

Relationship between common law and statute law

· General rule = law made by parliament (statute) is supreme over judge-made law (cases) (remember we elect parliament to govern)

· Court can override parliament if court finds:

o Proper procedures have not been complied with in enacting legn; or

o Parliament does not have power under relevant constitution to make the law

· Remember – parliament can make laws inconsistent with common law principles made by judges and judges have to accept that statute is supreme

Use

· Generally, we locate cases for one of two reasons:

o There is no legislation on the subject and so the area is covered by the common law, or

o You need to determine whether the legislation that does apply to the area has been interpreted by the courts

Nature of case law

· Case law, or common law, is law made by judges through their decisions on the issues before them

· The decisions of superior courts – and, particularly of appeal courts – are principally the cases we are concerned with here

· Although legislation has grown in scope and significance, case law still governs some areas of the law with only limited statutory interference - eg contract law.

· Even in areas governed by legislation, cases interpreting that legislation are important. These cases do not ‘make’ law here so much as ‘interpret’ it, but they must be read in conjunction with the legislation

· A case comes before a court because there is a dispute between the parties which needs to be resolved by an independent decision maker

· In civil trials, the decision maker is the judge. In criminal trials the decision maker about issues of law is the judge.

· Judges apply the law in working out the resolution of the dispute – and in the process of doing this they sometimes need to work out what the law IS before they can apply it.

· If the law on a particular issue is uncertain, then decisions made be judges about its meaning and scope will...