When a court sets a precedent, it is effectively creating a law (case law). This means that the law (or a newly clear interpretation that can only now be relied on) did not exist prior to the courts opinion being handed down.

If that is the case, it is trivially obvious that the person found guilty in such a "test case" could not possibly have broken the law, since the law is created at the moment of the decision.

Given that it is also clearly improper to hold someone responsible for laws that don't yet exist (violation of the "due process" clause), shouldn't those involved in test cases be protected from punishment? Are there any jurisdictions, or has there ever been a time, where "test case" defendants (and/or litigants in civil actions) are protected from punishment if a precedent is set from the decision? If not for the "due process reasons" but to encourage test cases that can improve the law—vs. the current approach which acts to prevent test cases because they are so risky. Has there ever been an attempt to implement such immunity, and if so, why/how was it defeated? Has a prosecutor and/or judge ever used their discretion to decrease or prevent punishment in a precedent-setting case?

  • The concept you describe is basically how the qualified immunity defense for law enforcement works.
    – ohwilleke
    Nov 4, 2020 at 19:58

1 Answer 1


Your premise that "the law did not exist previously" is, from the perspective of how courts work, mistaken. The law always existed, it's just that some people (maybe even judges) mistakenly thought the law didn't exist (actually, "meant something else"). Many people have wrong ideas about what the law says, but ignorance of misunderstanding of the law is no excuse. Even having an understandable wrong belief is no excuse.

There is an area in which ignorance of the law is excused. Violation of a person's civil rights under color of law is a civil wrong for which the officer can be sued. See Hope v. Pelzer, 536 U.S. 730 and citations therein:

Respondents may nevertheless be shielded from liability for their constitutionally impermissible conduct if their actions did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known."

Thus an officer may not use a qualified immunity defense if the court finds that an action is a civil rights violation and this "clarification" of the law is new.

  • 1
    How could case law exist before the case is decided? The only way I can imagine that is possible is if case law is not really considered "law" but is a colloquialism we use to describe "meaning" of statute? But even in that case, if the meaning of the law has not been established, that means ...literally ... that the law is meaningless... and that means that no law EFFECTIVELY exists. It is not that I am ignorant of the law it is that the law is not defined. One cant reasonably be held responsible for adhering to an undefined rule. Am I missing something or is legal theory misguided?
    – kevinkinal
    Nov 3, 2020 at 23:02
  • @kevinkinal It's law in much the same way that "A Song of Ice and Fire" is a song. Nov 3, 2020 at 23:38
  • @kevinkinal courts do not “create” law, they “discover” law that already existed. That, at least, is the legal fiction underpinning common law.
    – Dale M
    Nov 4, 2020 at 5:31
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    Your last sentence seems to be saying that qualified immunity is not available if the underlying act has not been long established as unlawful. This the opposite of the actual rule. Dec 11, 2021 at 3:16

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