What is the purpose, intent, scope, authority and/or limitations of case law?

Does case law have limitations?

Can case law create procedural rules, civil and/or criminal? Can procedural rules be used to limit a litigant's constitutional guarantees? I have a follow-up question but, dont want to muddy the waters with it just yet.

Let me try this (use your philosophical imagination):

The constitution says the people have a right of redress of grievances. But, the court says that all petition for redress of grievance must be filed in the state capitol and must be done so within the first 30 days of the first legislative session of the year. Is that the kind of power the courts have through case law?

  • I am under the impression that case law is used to clarify existing legislative law and not for the purpose of creating new law. How is this wrong. Can a court through case law create general binding law? – j. howdee Dec 2 '19 at 20:26
  • Thanks for clarifying. "Case law" means many things to many people, especially on the internet. It would help a lot if you took some time to write a few lines telling what you think case law is and how you think it operates. If there are specific parts of what you think of as case law that concern or interest you, you should point them out. That way, you won't get broad, abstract answers that don't address your question. (Examples and quotes are always helpful, too.) – Just a guy Dec 2 '19 at 20:50
  • One last thing. You might look at the Wikipedia page and see if you mean "precedent," the system of judges following earlier decisions interpreting what a statute means -- or "common law" -- the system in which judges decided cases based only on earlier cases. The term "case law" is sometimes used to describe both "precedent" and "common law." Which do you mean? en.wikipedia.org/wiki/Case_law – Just a guy Dec 2 '19 at 20:58
  • It sounds nice to say it's ok for judges to "clarify" law but not to create it. Unfortunately, this is a distinction without a difference. A law only needs to be clarified if its meaning is not clear, so that it can be read in more than one way. To remove the ambiguity, the judge has to pick one of those meanings, and reject the others. When the judge picks one of those meanings says, "This is what the law means," the judge is "creating" law. – Just a guy Dec 2 '19 at 22:43
  • 1
    I don't see what the "let me try this" addition contributes. Can you say somethings about why you think it matters? Also, how much do you know about the history of that guarantee? – Just a guy Dec 3 '19 at 19:49

Case law (or precedent) is an inherent and fundamental part of common law legal systems

The United States as a nation and 49 of its states are common law jurisdictions (Louisiana is a civil law jurisdiction).

In common law jurisdictions the law is made up of: enacted statute law - constitutions, legislation and delegated legislation and unenacted case law - judgments of judges in cases. These are intertwined and indivisible - neither makes sense without the other.

This contracts with civil law systems where statute law is the primary source of law. That said, no jurisdiction is "pure" common law or civil law as there has always been cross-fertilization of ideas and this has only accelerated over the last 100 years.

Where does the court get this power to make case law?

Whether judges make new law or discover laws that already exist is a philisophical rather than a legal question. Their power to do so is definitely a legal issue - courts are a legal creation. Either they are created by statute or the came into existence through the operation of traditional practice so long ago that their origin is more of interest to historians than lawyers.

I'm not going to go through the details of every court and tribunal in each jurisdiction of the United States so I'll just look at where the powers of the US Supreme Court come from. They are set out in Article Three of the Constitution:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. ...

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.


You can now see how the enacted and unenacted law are intertwined because "judicial Power" isn't defined in the Constitution - its definition comes from the common law as interpreted by the "supreme [sic] Court". So the question of if a particular decision falls within the decision making powers of the Supreme Court is decided by ... the Supreme Court. For example, the Supreme Court has decided that it does not have jurisdiction to decide disputes over the way Congress conducts the business of Congress - that is not something that falls within "judicial Power".

Similarly "Law" and "Equity" are not defined but they were (and are) long-standing creatures of English common law which the Constitution adopted. It must be remembered that the United States did not spring into existence ex nihilo and that the various states (as they were when the constitution was adopted) had functioning common law legal systems.

Your questions

Does case law have limitations?

Yes. Case law is only binding on lower level courts in the same hierarchy - it can be overturned by the same level or higher courts and ignored by courts in different hierarchies. It can be overturned by statute law - providing that statute is legal. It fills "holes" in the law so it really only happens when new situations come up - which is not that limiting because society is always changing and old laws become obsolete as a result.

Can case law create procedural rules, civil and/or criminal?


Can procedural rules be used to limit a litigant's constitutional guarantees?

I don't know what you mean. If there are procedural rules (by statute or case law) that serve to limit a constitutional right then the court can be asked to consider if those rules are themselves constitutional. Constitutional rights are not 'unfettered' and reasonable limitations on them in law or practice are allowed. For example, your right to free expression does not allow you to play the trombone at 2 in the morning in an apartment block.

  • 1
    As a fun fact, there are still today a few U.S. States without a statutory legal definition of Murder because the case law of the state has done an adequate job of defining a murder that no legislation was needed to codify it. (the sentencing guidelines do exist in these states by statute, but what is legally murder is still not a written law.). – hszmv Dec 3 '19 at 14:16

What is the purpose, intent, scope, authority and/or limitations of case law?

Case law is generally meant to apply to certain specific circumstances and if you read the opinions of the judges it will tell you what those are. Some apply more broadly though, it's really just up to the courts.

Does case law have limitations?

Yes, not all courts recognize all case law from other courts. That only happens when the courts are on the same level though. A lower court can not overrule a higher one most of the time.

Can case law create procedural rules, civil and/or criminal?

Of course it can create rules. In criminal law, a ton of rules come from case law. When you see lawyers argue about what a witness can testify about, most of that is from case law rules. There is no way a legislators could come up with every scenario someone could testify about and if they could they would not have time for anything else. Generally, in criminal law, the law will outline what constitutes a crime and the basic ways a trial should be conducted and then the decisions about what can be included as evidence or what can be included in testimony is mainly up to case law.

Can procedural rules be used to limit a litigant's constitutional guarantees?

Case law can provide restrictions on constitutional guarantees, but it can't do away with them. For example, the constitution says you have the right to bear arms, but that doesn't mean that rules about what you must do to do that can't be made.

  • Where does this come from? 'Case law can .. restrict the constitution.' Legislatures must act within the limits and restriction of their constitution. Where do court get the authority to create law? – j. howdee Dec 2 '19 at 20:19
  • Look at any major case law lol. Roe v. Wade for example in effect makes law. – Putvi Dec 2 '19 at 20:27
  • I know you have read articles online that use the phrasing act within the constitution or whatever, but if you really think about it gun laws, abortion laws, etc. etc. are really limiting your constitutional rights. The constitution doesn't say you shall have a foid card to own a firearm in IL, so that is restricting your rights, in a way. They can't take away those rights but they can place restrictions. Look at Article 1 section 8. – Putvi Dec 2 '19 at 20:29
  • @j.howdee Courts all create law. It's an inevitable part of deciding cases. But nobody wants to admit this, so we stick to the pretty fiction that real judges are like umpires -- they just call balls or strikes. That way, we can say that judges we don't like are "legislating from the bench," while judges we do like are "doing their job." – Just a guy Dec 2 '19 at 22:37
  • "Yes, not all courts recognize all case law from other courts. That only happens when the courts are on the same level though. A lower court can not overrule a higher one most of the time." Three sentences and not a single part is accurate. Your answers are like antonyms to correct ones, lol – A.fm. Dec 4 '19 at 3:47

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.