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.
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