Legal Systems of the World

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> ELI5, please?

This is going to be a bit oversimplified, but let’s say there’s a law on the books that states, “pigs must wear hats,” and I’m a pig farmer who has thus far refused to comply with the pig-hat statute.

I go to court and argue my case. I say, “but your honor, the law says that pigs must wear hats, and my pig is wearing a ski cap.” The judge looks at the ski cap and decides, “a ski cap is a hat, this man is innocent!”

Now, you’re also a pig farmer and like me, you decide to don your pigs in ski caps. Nevertheless, you’re arrested and put on trial. You argue, “but your honor, last year this court decided that ski caps are hats, so I should be let go!”

This can go one of two ways: either the court agrees that a ski cap is a hat and thus lets you go, or it doesn’t agree and you’re now stuck in jail for your pig-hat crimes.

In a Civil Law system, the court is free to interpret the law differently from the previous case. “A ski cap is by definition not a hat: if you want to let your pig wear ski caps, petition the legislature!” the judge says before throwing the book at you. Or she could be persuaded by the previous court’s decision and agree that a ski cap is, in fact, a hat.

In a Common Law system, the court—given no other exigent circumstances—is obliged to follow the earlier court’s decision that a ski cap is a hat. If it rules otherwise, you have cause to appeal to a higher court on the basis of that precedent. That higher court will then decide whether—given the circumstances of your case—the stare decisis of ski caps on pigs applies.

If it does, the lower court’s decision is vacated (i.e. invalidated) and you’re free to go on your wanton ski-caps-on-pig ways. If it doesn’t, you can continue to appeal to higher courts until either a) both parties (the state and you) stop appealing the decision or b) the highest court in the land for pig farming-related crimes has ruled on the case.

Like I said, this is a bit oversimplified—for example, in the United States, the state is generally prohibited from appealing a decision that acquits you of a criminal offense—but otherwise should be close.

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