Case law

Case law is a key component of the legal system and if you’re considering a career in
law you’ll need to familiarize yourself with it. Below we explore what case law is,
how it can affect future judicial decisions and shape the law as we know it.

Simply put, case law is a law which is established following a decision made by a
judge or judges. Case law is developed by interpreting and applying existing laws to
a specific situation and clarifying them when necessary. This process then sets a
legal precedent which other courts are required to follow, and it will help guide
future rulings and interpretations of a particular law.
Case law, also known as common law, is a body of law
created by judicial decisions rather than statutes or
constitutions. It's based on precedents, meaning the
rulings in previous cases shape future legal
outcomes. These judicial decisions, often reported in
publications like case reporters, guide courts in deciding
similar disputes.
• Key Characteristics of Case Law:

• Precedent:

• Case law relies heavily on precedent, which are the established

principles derived from previous court decisions. Courts will often
consider these precedents when deciding new cases with similar facts.

• Judicial Decisions:

• The source of case law is the detailed reasoning and rulings made by
judges in legal cases.
• Common Law

• While the terms "case law" and "common law" are often used
interchangeably, "common law" refers specifically to the law
developed by judges in common law jurisdictions, like the United
States and the UK.

• Statutory Law

• Unlike case law, statutory law is made by legislative bodies (like

Congress or parliament) and is codified in written law.
Are All Court Decisions Considered Case Law?

• ​No, not all court decisions are considered case law. Only certain court decisions,
typically those that establish legal principles or interpretations, are considered
case law or legal precedent.

• Case law refers to the body of law created by judicial decisions that serve as
binding or persuasive authority for future similar cases. Not all court decisions
have the same precedential value.

• For a court decision to be considered case law, it generally needs to meet certain
criteria:
Establishing Legal Principles: Case law typically
arises from cases that involve legal issues and
provide a basis for interpreting and applying the law.
These cases often involve novel or significant legal
questions that require a court to establish legal
principles or interpretations.
Binding or Persuasive Authority: A court decision
should have binding or persuasive authority to be
considered case law. Binding authority means that lower
courts within the same jurisdiction are obligated to follow
the decision as a precedent. Persuasive authority means
that the decision is not binding but can be considered and
used as guidance or persuasive precedent.
Published and Accessible: Case law is usually
published and made accessible to the legal
community and the public. Published decisions are
often found in legal databases, law reports, or court
websites. These published decisions serve as
reference materials for legal research and analysis.
CASE LAW RESEARCH

Generally, case law research is understood as searching, analyzing

the case laws which have been decided and adjudicated by the
courts. Firstly, case law refers to the collection of reputed case
which forms a body of law under the given jurisdiction of a state
and case law is the law found in decisions issued by court and the
law that is based on judicial decisions rather than law based on
constitutions, statutes.
Case law research refers to collection, analyzing, and identifying of the
case laws formulation by the court to understand and interpret the law.
The importance of case law research are:-

• Stability.

• Fairness.

• Predictability.

• Fixing the gap.

• Finding authority to support the argument.

Role of Case Law:
• Case law helps interpret and apply statutes and
regulations to real-world situations.
• It fills gaps in legislation where statutes are silent or
ambiguous.
• It provides guidance on how the law should be
understood and enforced in future cases.
What is the Importance of Case Law?

Case law is of great importance for several reasons:

Binding Precedent: Case law establishes binding precedents that lower

courts must follow when deciding similar cases.
These precedents provide consistency and predictability in the legal
system, ensuring that similar cases are treated similarly. They help in
promoting fairness and equality in the application of the law.
Example,Advocate Sunil Ranjan Singh v.s, Government of Nepal and
others ,Ne.kaa.pa 2077, Ank 9 , Discion no. 10568,Page no, 1727.
Interpretation of Legislation: Case law plays a crucial role in
interpreting statutes and regulations.
It helps to clarify and define the meaning of laws that may be
broad or ambiguous, providing guidance on how they should
be applied in specific situations.
Judges analyze the legislative intent behind the law and the
principles established in previous cases to interpret and apply
Legal Guidance: Case law provides legal professionals,
including judges, lawyers, and legal researchers, with guidance
on how the law has been interpreted and applied in specific
scenarios.
It helps them understand how courts have approached similar
legal issues in the past and assist in formulating arguments,
preparing legal strategies, and advising clients. (it may be
binding or merely persuasive)
Legal Development: Case law contributes to the
evolution and development of the law. As new legal
issues arise, courts have the opportunity to shape and
expand legal principles through their decisions.
Over time, case law can establish new legal doctrines or
modify existing ones, adapting the law to societal
changes and emerging issues.
Checks and Balances

Case law serves as a check on the legislative and executive

branches of government. Courts have the power to review and
invalidate laws or government actions if they are found to be
inconsistent with constitutional principles or legal rights.
Through case law, courts can safeguard individual rights, ensure
the rule of law, and maintain a balance of power in the legal
system.
Flexibility and Adaptability

Case law allows the law to adapt to changing circumstances and

societal needs. It provides flexibility by allowing judges to
consider each case’s unique facts and circumstances and make
decisions accordingly.
This adaptability helps the legal system to address emerging
issues and address novel situations that may not have been
anticipated by legislation.
How Does Case Law Work?

Case law works through a process of legal precedent. Here’s a

general overview of how case law works:

Legal Dispute: Case law begins with a legal dispute between

parties, such as individuals, organizations, or the government.
The dispute typically involves a question of law, where the
parties have conflicting interpretations or applications of the law.
Trial and Decision

The dispute is brought before a court, where both parties

present their arguments and evidence. The court examines
the facts of the case and applies relevant statutes,
regulations, and legal principles to reach a decision.
The decision is based on the judge’s interpretation of the
law and the application of legal precedents.
Written Opinion

After reaching a decision, the court issues a written

opinion explaining the reasoning behind the decision. The
opinion provides an analysis of the relevant legal issues,
the facts of the case, and the application of the law.
It may also discuss the precedents relied upon and any
new legal principles established.
Precedent and Stare Decisis

The written opinion becomes a precedent, which means it sets a

legal rule or principle that must be followed in similar cases.
Precedents are considered binding on lower courts within the
same jurisdiction, creating a doctrine called “stare decisis,”
which means “to stand by things decided.”
Stare decisis ensures consistency and stability in the
Citations and Research

Legal professionals and researchers cite and rely on case

law to support their arguments and analyze legal issues.
They refer to relevant precedents from higher courts or
similar jurisdictions to persuade judges, shape legal
strategies, and provide guidance on legal matters. Case law
serves as a valuable resource for legal research and analysis .
Appeals and Higher Courts

If a party disagrees with a lower court’s decision, they may

have the right to appeal to a higher court.
Higher courts, such as appellate courts or supreme courts,
review the legal issues, arguments, and precedents presented in
the case. They can affirm, reverse, or modify the decision of
the lower court, potentially establishing new precedents or
Evolution and Development

Case law evolves and develops over time as new cases

are decided, and precedents are established. Courts may
adapt or refine legal principles based on changing
societal values, technological advancements, or new
legal challenges. This evolution helps the law to remain
relevant and responsive to the needs of society.
It’s important to note that the weight and authority of
case law can vary. Precedents from higher courts
within the same jurisdiction generally carry more
weight and are considered binding, while decisions
from lower courts or courts in different jurisdictions
may only have persuasive value.
Limitations of Case Law

Incomplete or Inconsistent Precedents

Precedents are often based on specific facts and circumstances of

a particular case. This can result in limited or incomplete
guidance for future cases with similar legal issues. Moreover,
different courts or jurisdictions may reach different conclusions
on similar legal issues, leading to inconsistency in the
development of the law.
Rigidity and Stagnation

The reliance on precedents can sometimes lead to a rigid

legal system that is slow to adapt to societal changes and
evolving needs. Precedents may not always address new
or emerging legal issues, potentially hindering the law
from keeping pace with technological advancements,
social progress, or changing norms.
Overreliance on Past Decisions

Strict adherence to precedents can limit judicial

creativity and the ability to consider new legal
arguments or alternative interpretations . In some cases,
judges may feel constrained by existing precedents even
if they believe a different outcome would be more just
or fair.
Overturning Precedents

While precedents provide stability and predictability, they can

also create legal inertia. Overturning or modifying precedents
can be challenging, requiring a significant burden of proof and a
shift in judicial thinking. As a result, outdated or unjust
precedents may persist even when societal attitudes have
changed.
Lack of Legislative Input

Case law is primarily shaped by judicial decisions, and it

may sometimes encroach on the role of legislatures. This
can raise concerns about democratic legitimacy, as
unelected judges make significant legal decisions that
impact society without direct democratic input.
Limited Applicability

Case law is jurisdiction-specific, and decisions made

in one jurisdiction may not be binding or persuasive
in another. This can create inconsistency and
confusion when legal issues span multiple
jurisdictions or when courts have divergent
interpretations of the law.
Time and Resources

Researching and analyzing case law can be time-consuming

and resource-intensive, particularly when dealing with a
complex or nuanced legal issue.
The sheer volume of case law and the need to examine
multiple precedents can be a challenge, particularly for legal
professionals without access to comprehensive legal
databases or research tools.
Can Case Law be Overturned?

Yes, case law can be overturned. There are a few ways in which case
law can be overturned.

Overruling: A court has the authority to expressly overrule a previous

decision and declare it no longer valid. This can occur when a court
finds that the previous decision was incorrect, inconsistent with the law,
or no longer aligned with current legal principles or societal values.
Overruling a precedent will nullify its binding effect.
Distinguishing

Courts may distinguish a previous decision from the

current case by demonstrating that the facts or legal
principles are sufficiently different. This allows the court
to limit the scope or applicability of the precedent to the
specific circumstances of the earlier case without fully
overruling it. Distinguishing allows for flexibility in the
Abrogation by Legislation

In some cases, legislation enacted by the legislature

can supersede or abrogate a particular case law
precedent. When new legislation directly addresses
the legal issue or conflict, it can override existing
case law and establish a new legal framework.
Evolution through Subsequent Interpretation

Over time, the interpretation and application of a

precedent can evolve through subsequent court
decisions. Courts may reinterpret or refine the scope
and meaning of a precedent, effectively modifying
its application or impact.
 Customary law Systems
This law based on unwritten rules and traditions that have
been passed down from generation to generation. They
are influenced by religion, culture, and ethnicity, and they
vary from place to place. They are common in indigenous
communities and rural areas, especially in Africa and
Asia.
Customary law systems rely on the authority of
elders, chiefs, or councils, who resolve disputes
according to local customs and norms. Nepal's legal
system recognizes some aspects of customary law,
especially in matters of personal status, family
relations, and inheritance.
In Nepal, customary law, particularly
amongst Indigenous Peoples, plays a
significant role in governing social,
political, and economic affairs within their
territories.
While the state legal system doesn't explicitly recognize these
customary laws, they exist in practice, particularly at the local
level, where Indigenous communities manage their affairs
based on their own norms and institutions. The 2015
Constitution provides avenues for the formal recognition of
these customary systems at the local level, though de facto
recognition has been prevalent for a long time.
Nepal is a landlocked country in South Asia,
bordered by China and India. It is home to more
than 28 million people, who belong to various
ethnic, linguistic, and religious groups. Nepal is also
known for its natural beauty, cultural diversity, and
ancient traditions.
Nepal has been the first country in the South Asia to
promulgate 'a comprehensive code of laws and human
conducts' – a document that blended the laws, religions
and moral values. In 15th century, one of the kings called
Jayasthiti Malla promulgated this code which is
considered by historians as the most 'comprehensive
document of laws'.
This code contains a few interesting characters: (1) it
formally introduced the concept of plea-bargaining;
(2) categorized the type of punishment in accordance
with the intensity of the office perpetrated; (3)
introduced the concept of independent judge
(dharmadhikari) .
1 . This Code was called "Code for Human Justice".
It contained different sections for criminal and civil
laws and rules of conducts of differently groups of
people. It was comprehensive enough as it provided
an exhaustive list of rules in all aspects of life of
people.
To preside the court which accompanied two
more persons generally belonging from the
community or village of the offender; and (4)
eliminated the practice of 'ordeal'. This code
was popularly enforced for at least subsequent
two hundred years.
In the 17th century, king Ram Shah in Gorkha, the
principality that unified the nation, received fame
for introducing the 'concept of natural justice' in the
judicial process. He declared a rule to 'strictly
refrain from penalizing the witness and the member
of the suspect who defended their 'Keen and Keith'.
The impartial court without interference of king was
what assigned to 'adjudicate' disputes. In the same
period, in Kathmandu another king introduced the
concept of permanent civil and criminal court. These
courts were composed of three judges, the one who was
known as 'dharmadhikari' (expert of law) did precede the
court, but did not have his opinion on the fact.
He suggested the applicable once the suspect
was 'declared guilty' by two lay-judges.The
appeal of the case went to the monarch, but he
too did not pronounce acceptance or dismissal
of the appeal without consultation of the
• The suspect was supposed to prove his innocence with the help
of witnesses or ordeal. practiced a rudimentary/classical form
of inquisitorial system.

• Probably, its traditional familiarity inspired the first Rana ruler

to 'promulgate the comprehensive code in 1854' generally
based on Napoleon Code, which also provides an inquisitorial
system of justice.
King was informed by the dharmadhikari about the
judgment made by the court. Confession resulted in
50% relaxation of the punishment. Rana ruler Junga
Bahadur visited UK and France. It is said that when
he saw the Nepolean code, he also made up a mind
to introduce the similar written law.
He thus got a copy of the code. He accordingly
promulgated the Code fundamental problems
loom large. Firstly, bulk of laws are written in
vernacular (Nepali language), and secondly, the
system of translating law into international
languages is scant.
Obviously, it is really difficult to analyze, at least
for foreigners, the consistency of the principles of
law and justice historically evolved by the
indigenous Nepalese legal system. The comparison
of the indigenous legal system with other systems is
thus difficult for jurists who are not Nepalese.
The 19th century Nepalese legal system was thus obviously
composed of three different components: (1) concepts copied
from the Napoleon code, (2) concepts traditionally derived from
Hindu system of law, and (3) tribal or ethnic customs.

To some extent, the legal system of Nepal is framed by the

indigenous customs. Many such popular local customs have
been recognized and enforced by statutes. Substantial portion of
Bulk of civil laws is based on customary
practices. The land ownership and tenancy is
substantially customary. However, theses
customs are not well documented. Hence, it is
simply impossible to know what the custom the
courts can rely on.