5 ms·

US and UK courts help develop the law through the precedents they set in their judgements. Law is not just a product of the legislative process and statute, but

US and UK courts help develop the law through the precedents they set in their judgements. Law is not just a product of the legislative process and statute, but also of case law developed by judges. Common law often leaves a lot of the details of implementation to judges, and judges are also left to interpret and establish the law when an unforeseen case comes to their court that the legislative process did not deliberate over. If a higher court establishes a precedent for punishment then a lower court might cite that precedent as part of their legal reasoning of why they are bound to a particular punishment, and an appeal can be made against that judge if it is found they don't follow precedent. If you read a formal judgement you will usually find references to case law created by previous judges scattered throughout a judge's argument. Edit: As an example maybe look at the recent popular case of Oscar Pistorius in South Africa in which a major contention has been the interpretation of case law by the judge to decide the appropriate category (murder vs manslaughter) and punishment for the killing of Reeva Steenkamp.

mysterypie 10y ago
But is there an actual modern-day example? Like, someone was punished for picking strawberries out of season because it's against common law even though there is no legislative law. It's sounds to me like this situation no longer arises -- everything has been written down as a law.
- a_humean 10y ago
  New precedents are created all the time. Just look at the US supreme court which is a court with the primary responsibility of establishing case law precedents when lower courts disagree on statue and case law. They recently legalised gay marriage (I'd say good outcome based on bad reasoning, but whatever) and made it impossible for the US states and their courts from blocking gay marriage due to the precedent set as the highest court. Lower courts can now prosecute against states and officials that try to block it. The only thing that could override that ruling at this point is a constitutional amendment. I don't think we get many courts creating laws on picking strawberries out of season though. There would need to be an existing legal context in which strawberries picking out of season is an edge case that can be decided by case law.
  - mysterypie 10y ago
    Aha, so that's an actual modern-day example? An official who tries to prevent a gay marriage can be punished under common law even though there is no legislated law against officials trying to prevent gay marriage.
    - a_humean 10y ago
      Yes, there is no explicit statute that says that an official can be punished for preventing gay marriage, but new case law would make this an offence and a lower court might need to establish further new case law to decide what an appropriate punishment might be for the official or state that does try to block it within the legal context of similar violations of law both in statute and case law. Basically they would get fired for not performing their duties as an official.
- ajdlinux 10y ago
  In many common law jurisdictions (not including my part of Australia any more, but still in many other parts of the Commonwealth), murder is a crime defined by the common law - these days, statutes set what the maximum sentence of a murder conviction can be, but the definition of the crime itself is a common law definition.
- willyt 10y ago
  I'm not a lawyer but I have a basic understanding. In the UK case law is probably more applicable to what we call civil law than criminal law. Most things are criminalised by legislation (like French law) these days but civil law matters like the definition of the tort of negligence, contract law etc are more dependent on precedent (common law). So an example which is the basic definition of the modern interpretation of negligence is the snail in the ginger beer case [0]. This is a classic case which lawyers and quite a few other professionals study. I was taught this at Architecture School and I still get updates on cases pertinent to construction through the CPD program of my professional association. Obviously you can disappear down the rabbit hole pretty quickly when trying to figure out how precedent might apply to your particular situation. This is why you should always consult a lawyer not random comments on the internet. Also because they spend years reading this stuff it explains why they are so expensive! [0] https://en.m.wikipedia.org/wiki/Donoghue_v_Stevenson https://en.m.wikipedia.org/wiki/Donoghue_v_Stevenson

mysterypie 10y ago

But is there an actual modern-day example? Like, someone was punished for picking strawberries out of season because it's against common law even though there is no legislative law. It's sounds to me like this situation no longer arises -- everything has been written down as a law.

a_humean 10y ago
New precedents are created all the time. Just look at the US supreme court which is a court with the primary responsibility of establishing case law precedents when lower courts disagree on statue and case law. They recently legalised gay marriage (I'd say good outcome based on bad reasoning, but whatever) and made it impossible for the US states and their courts from blocking gay marriage due to the precedent set as the highest court. Lower courts can now prosecute against states and officials that try to block it. The only thing that could override that ruling at this point is a constitutional amendment. I don't think we get many courts creating laws on picking strawberries out of season though. There would need to be an existing legal context in which strawberries picking out of season is an edge case that can be decided by case law.
- mysterypie 10y ago
  Aha, so that's an actual modern-day example? An official who tries to prevent a gay marriage can be punished under common law even though there is no legislated law against officials trying to prevent gay marriage.
  - a_humean 10y ago
    Yes, there is no explicit statute that says that an official can be punished for preventing gay marriage, but new case law would make this an offence and a lower court might need to establish further new case law to decide what an appropriate punishment might be for the official or state that does try to block it within the legal context of similar violations of law both in statute and case law. Basically they would get fired for not performing their duties as an official.
ajdlinux 10y ago
In many common law jurisdictions (not including my part of Australia any more, but still in many other parts of the Commonwealth), murder is a crime defined by the common law - these days, statutes set what the maximum sentence of a murder conviction can be, but the definition of the crime itself is a common law definition.
willyt 10y ago
I'm not a lawyer but I have a basic understanding. In the UK case law is probably more applicable to what we call civil law than criminal law. Most things are criminalised by legislation (like French law) these days but civil law matters like the definition of the tort of negligence, contract law etc are more dependent on precedent (common law). So an example which is the basic definition of the modern interpretation of negligence is the snail in the ginger beer case [0]. This is a classic case which lawyers and quite a few other professionals study. I was taught this at Architecture School and I still get updates on cases pertinent to construction through the CPD program of my professional association. Obviously you can disappear down the rabbit hole pretty quickly when trying to figure out how precedent might apply to your particular situation. This is why you should always consult a lawyer not random comments on the internet. Also because they spend years reading this stuff it explains why they are so expensive! [0] https://en.m.wikipedia.org/wiki/Donoghue_v_Stevenson https://en.m.wikipedia.org/wiki/Donoghue_v_Stevenson