Case law: Some theoretical and practical issues

  1. Make a problem

An important feature of the rule of law is to have a complete legal and judicial system. The current Vietnamese legal system still has many contradictory, outdated or inadequate legal regulations to settle disputes in society. This will make it very difficult for the justice system to carry out its function of ensuring justice. Faced with this situation, on June 2, 2005, the Politburo issued Resolution 49-NQ/TW on the judicial reform strategy up to 2020, which clearly stated: “The Supreme People’s Court has the duty to summarizing trial experience, guiding the uniform application of the law, developing case law… Although there has been a direct direction from the Politburo, there are still many scientific arguments surrounding the issue of whether to recognize and use case precedent in our country and how to use it. ? Some people believe that the recognition and use of case law is an indispensable requirement. On the contrary, some others have an attitude of apprehension, suspicion, and even prejudice towards case law. They ask various questions such as: Can only a few judges create case precedents that can be fair and objective? Judges have the power to make laws, so it may lead to arbitrariness of judges when conducting adjudication activities? etc. Therefore, through this article, we wish to contribute to discussing the value of precedent law sources by analyzing the nature, advantages and limitations of law sources, thereby making some recommendations to improve the law. effective use of case law in Vietnam today.

  1. The concept of case law

In English, case law is “precedent”, this term arises from the common law system with a system of legal reasoning that is completely different from the civil law system. Therefore, case precedent will not be easily accepted by jurists and researchers in countries with civil law systems.

According to Black’s Law dictionary, case law is understood as follows:

  1. Case precedent is the making of law by the court when recognizing and applying new rules in the adjudication process; 2. The case has been settled as a basis for making a judgment for later cases with similar circumstances or issues”.

From there, it is possible to point out some basic characteristics of case precedents as follows:

First, case precedent is created by the court during the trial process, so the source of case law is also known as the law formed from the case (“case law”) or the law issued by the judge (“judge make law”. ). Meanwhile, the source of written law is mainly created by the way parliament promulgates. Arguments for why giving

Legislative powers for courts or parliaments have their own valid arguments. The jurists of the civil law system argue that the law should not be created from the judgments of judges because they do not have enough time to make general rules that are just. Legal norms must be the product of thinking on the basis of factual summaries, in accordance with economic, political, and ethical considerations, not the whims of judges. Legislation should be made with collective wisdom, prudence should be exercised and the job is appropriate for parliaments. Thus, the role of the courts in these countries is only that of the applicator of the law, not the creator of the law. Meanwhile, jurists of the common law system argue that the law created by the parliamentary way will not be highly practical, difficult to change, highly generalized and abstract.

Second, the precedent that is formed must be new. That is, this is a rule (ratio) that did not exist before. Some people think that, since case precedents are created by the way the courts go through cases, it will be numerous and chaotic. In fact, not every case when a court hears a case creates a precedent. Usually, when there is a dispute in court, the judges as well as the lawyers will be interested in two issues: (i) The question of fact; (ii) The question of law. For cases that simply concern the determination of the legal substance of the fact (question of fact) and have been provided for in a legal document or previous precedent to apply, the court does not create a judgment. rules when dealing with these cases. Very few cases related to legal issues (question of law) need to be resolved by law without a rule of precedent. Only then will the courts create precedents when dealing with these cases.

For example, Donoghue v Stevenson 1932. In 1928, Ms. Donoghue and her friends went to a cafe in Paisley. Donoghue’s friend bought a can of cloudy ginger juice, then the owner opened the bottle and poured it into a glass. After drinking, Ms. Donoghue discovered that there was a lightning nail in the glass. After that, Ms. Donoghue suffered from nervous shock and stomach pain. So she sued the manufacturer (Stevenson) on the grounds of lack of responsibility to the consumer and asked for damages. The legal issue here is whether there is a legal contract arising between the producer and the consumer and whether the consumer has the right to sue for damages against the producer. According to the traditional contract theory of common law (privity of contract), a contractual relationship between producer and consumer is not recognized because the producer does not enter into a contract with the consumer. However, in the end, the House of Lords ruled that the producer must compensate Ms. Donoghue under the tort law. Since then, the “ratio” rule has been formed about the manufacturer’s duty of care to consumers.

Third, construction and operation techniques are based on the same factor. Stemming from the fairness thought of the philosopher Aristotelian that “Like cases must be decided alike”, common law jurists thoroughly use this method to construct and apply precedent. The specific thinking technique of common law creates case precedent that is neither deductive nor inductive but analogous thinking (“analogical thinking’), that is, taking the similarity as the standard or the similar. A rule of precedent called “ratio” is formed based on three factors: (i) Facts; (ii) Reason or argument (reason); (iii) Decision of the court. When a court settles the first case only creating a picture or outline of a rule rather than a perfect rule, a rule or rule of law is formed having to go through a series of cases. similar later. Later judges when dealing with a case need to identify and evaluate the similar argument, if this case is similar, they will apply the argument in the previous judgment to settle the current case, if not. self does not apply.

For example, Grant v Australia Knitting Mills 1936. Plaintiff (Grant) purchased clothing from the Australian company Knitting Mills from a retailer and upon wearing it developed a skin allergy caused by the chemicals present in the clothing. Therefore, the plaintiff has asked the manufacturer to compensate and ask for the application of the precedent rule of the Donoghue case. The judges of the trial panel of the UK’s Judicial Council (Privy Council) gave their own arguments and argued fiercely to determine whether this case was similar or different from the Donoghue v Steveson case. 1932. Judge Greene, for example, argued using the term control to distinguish this case from the Donoghue v Steveson case. The product that Ms. Donoghue uses is a can of cloudy ginger juice, otherwise it is impossible and impossible to detect product defects, which leads to the manufacturer’s liability. Whereas the product in the Grant v Australia Knitting Mills case is clothing, customers can detect product defects or have other safety measures when using such as reducing before wearing. The Donoghue v Steveson case, in the course of debate, may have introduced a rule regarding ‘liability of manufacturers’ that could be suspected of going too far or being general. of this rule is too high. 2

  1. Some basic values of the source of case law

Compared with the source of legal documents, in our opinion, some advantages of case law can be pointed out as follows:

First, case precedent is highly practical. That is, based on practice, focusing on solving concrete problems of real life, not solving problems with abstract general theories. The practicality of case precedents manifests as follows: (i) Arguments that create case precedents are artificial, not natural; (ii) Common law jurists try to explain the spirit of the law rather than the word form of the law.

(i) Concepts of reason or precedent rules in common law are artificial, not natural. That is, the arguments or precedent rules are not available, but people have to study and observe for a long time through the process of accumulating experiences in real life. In this respect, the views of the common law jurists are very close to that of the positivists. Philosophically, the history of the common law system is formed from two factors: custom and reason. The origin of case law in England is formed from customs, initially local customs and then selected by judges, added to common law for the whole UK. Therefore, common law law is both close to reality and objective. Common law judges are always looking for solutions to specific problems rather than making theoretical arguments from an ethical point of view. Thus, judges are practical people, not philosophers or theorists. This is also reflected in the way judges are selected in two very different common law and civil law traditions. Dr. Rupert Cross 3 points out the difference in the selection of judges in England and France: Judges in the UK are selected from barristers, which is not a mandatory condition when selecting judges in France. ; As a result, judges in France are often younger and more inexperienced than their British counterparts.

(ii) The case law rules of common law are known as unwritten rules. The jurists of the common law system argue that the laws made by parliament are indirect and rigid. When dealing with a case the judge needs to grasp the spirit of the rules and must seek out the intention of the legislator. Therefore, the term legal rule is foreign to common law jurists, because they think that the clearer and more coherent the legal rules expressed in words, the stronger they will be. prompt, dry. The law is the solution to the problem of fact, not merely a matter of theoretical or ethical debate. Therefore, if the legal system is reduced by certain rules and practices and then included in the laws or legal documents, the general invisible will make the law “dead” rather than “alive”. . Common law jurists believe that the law cannot be perfect to deal with every future case. So the created rules that exist in past judgments are just stereotypes, precedent patterns. Current judges must find the most reasonable solution for their case on the basis of precedent. Therefore, the rules (ratio) in common law are considered “implicit rules”, that is, implicit rules. Bacon wrote: “not make the law from the rules, but to make the rules from the law that is, the body of existing opinions and decisions’ prescriptive rules, are all opinions and decisions that have been contested . This is why the source of case law is called unwritten law. Thereby, jurists of common law are not looking for a verbal form of existence for the rules of conduct, but seem to be looking for the content and spirit of the law in previous jurisprudence judgments. At the same time, the source of case law also shows more flexibility and flexibility than the source of legal documents

Second, case precedent has the ability to overcome legal loopholes quickly and in a timely manner. Social life is always moving and developing, but the norms in legal documents are stable, and as a result, the law may be outdated or insufficient to solve life’s problems. . To overcome this situation, civil law lawyers look to other sources of support such as the application of custom or the use of case law. Case precedents in civil law countries are formed mainly through the interpretation of the law by the supreme court. When interpreting the law in cases where no written norm exists, judges rely on certain principles. For example, French judges rely on justice and reason, German judges use a general rule invalidation of specific rules, and Nordic judges use the rule: “The harmful law is not the 5th law . Although, in each country, there are different ways to overcome legal loopholes, it ultimately reflects the law-making role of the courts. In these cases, the disputing parties or the judge cannot wait for the parliament to supplement or amend the law. Similarly, in common law countries the rules of precedent may not be adequate or reasonable to resolve all disputes in society. Judges must also look for reasonable arguments to amend and supplement existing case law rules. However, when judges do this, it will be faster and more timely than parliament because it has to go through a very complicated legislative process and procedures.

In the field of civil law of Vietnam, in order to overcome the lack of written legal documents, legislators also offer certain methods such as applying custom or similar law provisions. 6 . Both of these methods can lead to the formation of precedents. However, to be able to solve the case in these ways requires the judge to be someone with extensive experience and knowledge in the field of legal science.

Third, case precedent shows objectivity and fairness. Some people believe that case precedent is created by a few judges in the trial panel when dealing with a specific case, so it can lead to a subjective and arbitrary situation in creating precedent rules. . In fact, this statement only looks at the source of case law and misunderstands the essence and spirit of the doctrine of stare decisis. First of all, a rule of precedent is not formed from a specific judgment, but it must be formed through a series of similar cases later, the first judgment is just a sketch of a rule. precedent. So a case law in common law has no author, no copyright for any judge. Second, the rule of precedent in common law is the result of a long process of arguments and arguments. Controversy is expressed through arguments between the plaintiff and the defendant in the case, between the judges in the trial panel, between the later judges and the previous judges when they apply the arguments of the previous judgment. Third, the rule of precedent must be recognized as a common value or common reason. When new cases arise but there is no solution to them, or applying existing rules to these cases will not bring about a fair outcome as expected.

Therefore, the judges have to find new legal solutions, but can the judges set their own standards and values that the disputing parties must obey and the whole society must accept? If so, there would be no limits to the court’s law-making powers. In essence, the court’s law-making authority is bound by written legal norms and pre-created rules of case law. On the other hand, the judgment of the court must be consistent with the prevailing values of the society. The decision of the court in these cases not only the judges themselves feel that it is fair, but the disputing parties in the case and the whole society must recognize its rationality.

  1. Basic limitations of the source of case law

Although the source of case law has significant advantages as analyzed above, the precedent theory is criticized by civil law jurists. Critics focus on the following points:

Firstly, based on the idea of division of power in the organization of the state apparatus 1 . Accordingly, state power is divided into three branches and assigned to three different bodies to hold, namely: legislative is vested in parliament, executive is in government, and judicial is in court. Thus, if giving the authority to make laws to the courts would violate this principle, the courts would encroach on the law-making function of parliament. One of the quite interesting paradoxes is that the parliament (legislature) originated in England, but it is also in this country that people are loyal to case law and appreciate the law-making role of the courts. Of course, common law jurists do not deny the legislative function of the parliament, but the legislative work of the parliament has the limitations as discussed above. It should be noted, however, that they only affirmed the necessity of the law-making role of the courts without denying the legislative function of parliament. On the other hand, they also argued that the court itself was involved in creating the unwritten constitution of England.

Second, using the source of case law will lead to a retroactive situation . One of the important requirements of the rule of law is that it is not retroactive when applying the law. For example, in the Donoghue v Stevenson case, the producer did not have a direct contractual relationship with the consumer. Therefore, based on previous precedents, Ms. Donoghue cannot sue the manufacturer and the producer is not liable to the consumer. However, the outcome of this case was won by Ms. Donoghue, House of Lords judge Atkin concluded: “I think this appeal should be accepted”. And Judge Thankkerton said: “the appellant’s argument is reasonable and the petition is appropriate”. 9 Thus, a new rule was formed that “If the manufacturer (manufacturer) negligently causes damage to the consumer, he must compensate”. Apparently this rule has a retroactive effect on the manufacturer’s liability for damages . This is very difficult for manufacturers, because they do not know how the law prescribes to behave appropriately when the behavior is before the law.

However, common law jurists also make quite sharp arguments to justify this limitation of the source of case law. First of all, the law must be practical, that is, the rule of law is to solve the concrete problems posed by life, not abstract, the theory imagined by people, so the development of law must be practical. common law derived from specific cases. Secondly, stemming from the requirement to solve specific cases, people need to find solutions or arguments from life to ensure fairness, justice and no one can escape justice. Here, the category of justice is understood very closely to the point of view of natural law after the 19th century. Third, the rules of precedent are not constant, they need to change and evolve as required. of life. Before 1932, in legal terms, common law jurists did not believe that there was a liability relationship between the producer and the consumer, but since 1932 after the settlement of the Donoghue v Stevenson case, the law has been established. new rules on the liability of manufacturers to compensate consumers for damages if they are careless and cause damage to consumers. This shows the development of law in the field of “tort law” – the law of compensation.

Third, case precedent is not as uniform and systematic as the text source. This is true, because precedent rules are implicit rules that exist in civil judgments, so it is difficult to perceive and determine the generality and scope of application of a rule. , complex and often controversial. Because when dealing with a given case, judges do not aim to create a rule for future cases. The difficulty in perceiving precedent rules is reflected in the following reasons 10 : (i) It may be difficult to agree on a rule of precedent in a too strict legal perception; (ii) It is possible to determine at a general level whether a precedent rule is higher or lower because the first case that creates a precedent rule is only an initial contradiction, a precedent established must be after a series of similar incidents. For example, in the case of Donoghue v Stevenson, only a general rule was formed: “If the manufacturer is negligently at fault causing damage to the consumer, he must compensate”. But what is the manufacturer’s product? Is it just cans of cloudy ginger water or all canned drinks or does it include all food products or all products? This needs to be debated by the judges when settling the cases after determining whether their case is similar to the Donoghue v Stevenson case. It is this process that creates boundaries and forms a rule of precedent in common law; (iii) In some cases it may be difficult to distinguish between what is a rule, a imperative argument (ratio) and part a reference argument (the obiter dicta).

  1. Case precedents in the common law and civil law systems

In common law countries, case law is considered the main source of law, many areas of law are not codified into codes, especially in the UK the source of case law is most thoroughly applied. However, the level of use as well as the role of case law in the legal system in each country is different. For example, although the United States is a common law country and is strongly influenced by British law, many areas of its law are codified into codes, the presence of the Commercial Code Uniform commercial code is a good example. In common law countries, judges both create case law rules and are bound by existing case rules. The rules of case law are created not only by the supreme court but also by all other courts that have appellate jurisdiction over the judgments of lower courts. For example, in the UK the court system can be divided into two groups : (i) The first group of courts that do not create precedents include: Magistrates’ courts, County courts. district), Crown court (Royal Court); (ii) The second group of courts that create precedent includes: High courts, Court of Appeal, Supreme Court.

Today, although most countries of the civil law system emphasize the role of a source of written law, these countries also attach great importance to the use of case law as a supplementary source of legal documents. by a selection of trials by the Supreme Court. In these countries, the Supreme Court has two main duties: (i) Correcting errors to lower courts by canceling wrong judgments; and (ii) Legal interpretation in order to overcome the lack, backwardness and ambiguity of the written legal regulations. The second task of the Supreme Court is seen as the creative activity of law and case law created in this way. The interpretation of the law by the supreme court will set a precedent, when lower courts encounter similar cases, they will use the interpretation of the supreme court, although this is not a mandatory obligation. for them. The judges have the right to interpret in their own way, but if the Supreme Court is not convinced enough, their sentences are in danger of being overturned. So usually judges will interpret according to the interpretation of the high court in similar cases. In order to serve the uniform application of the law throughout the country, the supreme courts in these countries issue sets of case precedents, which enables judges to grasp the legal point of view of the court. supreme in cases where the written law does not stipulate or the regulations are unclear.

  1. Experience for Vietnam

In our country, the Judicial Council of the Supreme People’s Court (TANDTC) – the highest judicial authority focuses on performing the main function of correcting errors for the lower courts, while interpreting The law that creates precedents to facilitate the uniform application of the law has not been given due attention. However, according to the general trend, the Supreme Court in countries with civil law systems such as France, Germany… focuses on performing the second task more. The use of case law sources has become an indispensable requirement for all court systems in countries around the world. In our opinion, in order to proceed to use case law in Vietnam, it is necessary to fulfill the following requirements:

First, it is necessary to improve the quality of the judges’ legal opinions. In our opinion, in order to ensure the quality and credibility of the judges’ legal opinions, it is necessary to meet some basic requirements as follows:

(i) Improve the qualifications of judges. The construction and use of case precedent always puts the role of the judge on top because they are the ones who directly build and use the case precedent. However, in our country at present, the number of judges is not many and their professional qualifications are limited. This is a fact that many heads of the judiciary have publicly stated and acknowledged. Therefore, this will be a huge obstacle to accepting the use of case law. Therefore, it is necessary to improve the qualifications in general and in-depth about case precedents for judges.

(ii) It is necessary to ensure the element of argument and diversity of arguments when making legal arguments of judges. One of the important means of ensuring the legitimacy of judges’ arguments when making judgments is the element of debate and independent argumentation of each judge. All arguments and legal views of the judges in the trial panel are recorded in the judgment. It is necessary to avoid the situation that the judges in the trial panel give few arguments but the consistency is high. Failure to ensure this requirement may lead to a situation where the court’s judgments are subjective, emotional or one-sided.

(iii) It is necessary to expand the source of documents that are the basis for making arguments or arguments showing decisions and judgments of the court. Currently, when reading the cassation decisions of the Judges’ Council of the People’s Court, we find that the basis for giving legal opinions in the “considering” part of the judges’ decisions is still very poor. brief and highly dependent on legal documents. In some cases, that is, using existing written legal documents cannot solve the problem. Therefore, judges need to have richer and more diverse sources of evidence such as: custom, past provisions of law, legal doctrine, legal principles, scientific commentaries, etc. In general, any source can be used to convince the judges that the legal position of the judges is reasonable. Therefore, it is necessary to reform the “considering” part of the cassation decision of the Supreme People’s Court’s Judicial Council on the content and form. Judges may refer or cite various sources and include them in court decisions

(iv) The judges’ arguments need to be tested and supplemented by the legal community and legal practice. It is necessary to recognize the legal viewpoints existing in the case law from an “open” perspective and in relation to the ever-moving socio-economic conditions. This means that the legal positions of case law frequently have to be additionally tested and eliminated, and of course it also needs its own relative stability. Judges in common law countries are both legal practitioners and legal scientists, so it is the judges themselves who participate in very active legal science activities. In Vietnam today, there is still not a good connection between legal practice and legal science activities, judges are still less involved in scientific activities, legal science work, etc. Drugs for scientists. Therefore, in the current conditions, encouraging and facilitating the collection and commenting of theses for legal scientists, lawyers and especially judges is a necessary and important job. important to improve the quality of the source of case law.

Second, in order to progress towards the recognition and effective use of case precedents, the announcement of the judgment is a must-do. Publication of the judgment will contribute to ensuring the transparency of the law and is important for both judges and the public. When there are judgment sets, it will create conditions for judges to apply the law uniformly, while people can understand the provisions of the law more clearly and contribute to raising the sense of law compliance. However, in order to promote the role and effectiveness of the case law, it is necessary to re-select the cassation decisions before issuing, only decisions related to legal issues, should not be released. Post decisions related to event issues. In recent times, although the Supreme Court has issued cassation decision sets, not all decisions can be considered as case law. Because case law is only formed when there is a new legal opinion on the issue that the source of the normative document has not specified or the regulation is unclear. In cases where the People’s Court of China corrects the errors of the lower courts, these rulings are not precedents. The selection will make it easier for judges, lawyers, and legal scientists to grasp the content of judgments and also contribute to the improvement of the legal system. In France, the editing of judgments is assigned to scientific institutions, whereby the Supreme Court will send decisions quarterly to identified centers on each respective area of law to carry out its mandate. this service. This can be a good experience for Vietnam.

  1. Bryan A. Garner(1999), Blacks Law Dictionary, West Group; “Precedent: 1) The making of law by a court in identifying and applying new rules while admin istering justice; 2) A decided case thatfurnishes a basic for determining later cases involving similar facts or issues
  2. WJ. Moririson, A.Grearey, K. Malleson, Common law reasoning and Institution, the University of London, 2000, p. 151,152.
  3. Rupert Cross, Precedent in English Law, Oxford University Press, 1977, p.14
  4. Gerald J. Postema, “Philosogy of the common law”, The Oxford Handbook of Jurisprudence and Philosogy of Law, Oxford, 2004
  5. Rene David, translator: Major legal systems in the contemporary world, Nguyen Si Dung, Nguyen Duc Lam, Ho Chi Minh City Publishing House, Tr. 103
  6. Article 3 of the 2005 Civil Code stipulates: “In cases where the law does not provide for it and the parties do not reach an agreement, the custom may apply; if there is no custom, the same provisions of the law shall apply. the law . Customs and similar provisions of law must not be contrary to the principles of this Code.”
  7. The doctrine of rights was perfected by the French thinker Monstequieu (1689-1775), but was thoroughly applied in the organization of the American state apparatus according to the constitution1787
  8. Retrospective is an exception principle on the effect of legal documents over time, applying the document to acts that occurred before the document took effect.
  9. Alastair MacAdam, John Pyke, Judicial Reasoning and The doctrine of Precedent in Australia, Buterworths, 1998
  10. Catriona Cook, Robin Creyke, David Hamer, Laying down the Law, LexisNexis, Buterworths, 2005, P. 78.
  11. Do Thi Mai Hanh, Doctor of philosogy Thesis: Avaluation of the Applicability of common law Approaches to precedent in Vietnam, 2001, pp. 177-184

Source: According to

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Post Author: Nguyen Thi Tam