What is case law? How is a case law created? For what purposes is case law ……..? When and how does case law become overturned?
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This element explores case law, also called common law, as a source of law inEngland and Wales, in detail’Judge made’ law ?The terms ‘case law’ and ‘common law’ are used interchangeably, todistinguish law that is decided by judges, from law that is made by Parliament–and interpreted by judges.The ‘common law’ refers to the body of case law decided by judges. It issometimes referred to as ‘judge made’ law.The common law is governed by so-called rules of precedent. This means thatthe decisions of judges higher up in the hierarchy of courts and tribunals are’binding’ on those lower down, i.e. the judges in lower level courts andtribunals have to decide cases in accordance with the principles laid downcourts above in the hierarchy.What do judges do?Judges decided cases that are brought by individuals (whether these areprivate individuals, or other ‘legal personalities’ such as companies) againstanother party. Judges do not, of their own accord, start cases or investigatelegal issues.In order to decide a case, a judge will:• Consider the evidence brought by the parties, and decide which evidencethey find credible. In this jurisdiction, judges do not carry out an investigativerole.• Consider the applicable law. This may be caselaw, or statute, or acombination of the two. Although Parliament makes legislation, judges decidehow it should be applied in any given case.• Apply the law to the facts of the case, and reach a decision on which partyshould succeed.• Decide what remedy the successful party is entitled to, e.g. damages(money).• Make an order giving the successful party their remedy.