What is Judicial Law?

Case Law Statutes are the primary source of law, and the power to enact statutes is reserved to elected lawmakers. However, judicial decisions also have the force of law. Statutes do not cover every conceivable case, and even when a statute does control a case, the courts may need to interpret it. Judicial decisions are known collectively as case law. A judicial decision legally binds the parties in the case, and also may serve as a law in the same prospective sense as does a statute. In other words, a judicial decision determines the outcome of the particular case, and also may regulate future conduct of all persons within the jurisdiction of the court.

The opinions of courts, taken together, comprise the Common Law. When there is no statute specifically addressing a legal dispute, courts look to prior cases for guidance. The issues, reasoning, and holdings of prior cases guide courts in settling similar disputes. A prior opinion or collection of opinions on a particular legal issue is known as precedent, and courts generally follow precedent, if any, when deciding cases. Breaking with precedent may be justified when circumstances or attitudes have changed, but following precedent is the norm. This gives the common law a certain predictability and consistency. The common law often controls civil matters, such as contract disputes and personal injury cases (torts). Almost all criminal laws are statutory, so common law principles are rarely applied in criminal cases.

Sometimes courts hear challenges to statutes or regulations based on constitutional grounds. Courts can make law by striking down part or all of a particular piece of legislation. The Supreme Court has the power to make law binding throughout the country on federal constitutional issues. The highest court in each state has the same power to interpret the state constitution and to issue holdings that have the force of law. Occasionally courts create new law by departing from existing precedent or by issuing a decision in a case involving novel issues, called a case of first impression. If legislators disagree with the decision, they may nullify the holding by passing a new statute. However, if the court believes that the new statute violates a constitutional provision, it may strike down all or part of the new law. If courts and lawmakers are at odds, the precise law on a certain topic can change over and over.

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