International Foundation for Electoral Systems How are they changed? Orders and decrees may be amended, extended, curtailed or terminated by a later order or decree. Conflicting legislation will normally invalidate them and they can be invalidated by decision of a court. Why do they have more authority than the form of law one step down? The power to issue presidential decrees or executive orders and their place in the hierarchy of laws should be specified in the constitution. Because this kind of authoritarian law-making may be more easily abused than other forms of legislating, it should be subject to timely check by the courts or legislature. The constitution should also be clear about the effect of a presidential order and its position vis-a-vis a lower authority (e.g., a sub-national or state statute). Common Law/Case Law What is the purpose of common law or case law? Common law is not a level of hierarchy per se, nor is it law on a particular subject. Common law is law made by the courts, not by the legislature. Only a minority of countries accept the concept of common law, but where it is recognized, it is a source of authority in law. It consists of the judgments of courts, and is also referred to as case law. This can be a judgment to interpret the wording of statute law, to protect the principles of natural justice, to fill a gap in the law, or to deal with an unforeseen situation not covered by statute. The common law consists of written decisions (not a codification or summary of the judgments) and the judgments may be cited in subsequent litigation, when other courts may approve of, follow, or distinguish the original judgment. These later judgments modify the common law. A Note on the Hierarchy of Courts In most countries the judiciary also operates in a hierarchy, with different levels of courts that each has a different jurisdiction to interpret and apply the law. This may include district or state courts, federal courts, appeal courts, and a supreme court. This hierarchy provides routes of appeal – a fundamental right – so each court will have greater authority than the levels of courts below. Some courts have jurisdiction on both civil and criminal matters, but some courts are restricted to one or the other, or have a specific jurisdiction (e.g., special election courts). Common law can relate to a subject that is normally legislated at national or at a sub-national levels. It may relate to civil or criminal issues and therefore may function within various levels of the hierarchy of laws, at least in countries where it is recognized. Many rules originally established by common law are eventually incorporated, amended or removed by statute law. In such cases, the statute then replaces the common law rule. In some countries that recognize common law, there are some important areas of the law that are still grounded in common law, including aspects of the law governing torts and contracts. Who drafts common law or case law? Common law is comprised of judgments emanating from the court system. 12