Case law as intermediary and source of certainty
So far our discussion has focused on the law, its implementation, and its relation to spatial realities within society. Perhaps on purpose, or perhaps because few do so in a context of legal failure, this article has so far not looked at the role of adjudication and case law.
In Western European civil law systems in which the continental legal system originally developed, adjudication might not set precedent. However, it does play an important role as a source of law (Guo 2015). Case law serves as an intermediary between the state's isolated legal system and local justice throughout society. On the one hand, the process of adjudication applies abstract state norms to specific local circumstances. On the other hand, because adjudication forms an informal source of law in Western Europe, case law serves as a form in which the norm interpretations applied in local conflicts serve as a source of state law. Cases are made into case law through legal analysis, starting with legal arguments made in lower courts and solidified by the supreme and highest courts, which seek to provide guidance on the best judicial interpretations. Legal research plays a vital and often overlooked role in this process (Guo 2015). Legal scholars in Western Europe analyse the differences in how the relevant courts interpret abstract state law (Guo 2015). In doing so, they try to find doctrines (i.e., leading types of interpretations). Such doctrines are then described in articles, monographs, and (most importantly) textbooks used by legal professionals and law students.Case law as a source of law has an important implication for our analysis of legal failure so far. Case law makes it possible to use abstract norms while creating legal certainty and unity. Its relative flexibility and specificity means it less frequently violates local norms when compared to ordinary state law, especially regulated state law.
Without case law, state law has to be much more specific in order to provide legal certainty and is more likely to conflict with local norms and lead to legal failure. So without case law as a source of law, legislators face a much tougher challenge in overcoming the law’s Catch-22. Legislators must then find a way to provide both certainty and adaptability to local circumstances. A political process that provides legislators with thorough inputs on local circumstances helps them understand the local contexts their laws must fit, but the primary challenge of balancing certainty and flexibility remains unresolved.Case law’s second implication for spatial legal failure is that it serves to transform local norms into state law. As we have seen, such a bottom- up process is rare in modern lawmaking, especially for regulatory law. We could conclude that case law as a source of law reduces spatial legal failure.
In many developing civil law systems, a well-functioning system of case law is not present. China serves as an example, while other developing countries as different as Indonesia or Mali present similar problems. As would be expected in a civil law system, the current Chinese legal system does not generally recognise specific legal interpretations made by courts as a source of law (Guo 2015). This makes the Chinese legal system very unlike Western European legal systems, where despite their continental roots and lack of formal precedent, court cases are vital sources of law. The Chinese one-party state has not wanted courts to create legally- binding norms. The exclusive power over lawmaking should rest with the legislator. There has been some recent change, including the Chinese Supreme People’s Court issuing so-called “Guiding Cases,” selecting a handful of China’s lower cases as exemplary cases that should have a binding effect (Ahl 2014; Guo 2016). Yet even with this development, China still does not have a true, bottom-up, norm-formation system that exists in legal systems that do recognise cases as sources of law.
Meanwhile, Chinese legal scholars have not systematically reviewed cases. Many cases still lack elaborate motivation to serve as proper sources of legal interpretation (Guo 2016).All of this has had several effects. First, the Chinese legal system lacks legal certainty. One study of Chinese tort law found that a Chinese legal practitioner has no way of knowing how to interpret the generally stated constitutive requirements of non-contractual civil liability. The law itself is vague on this point, as it is in most legal systems. However, where a Dutch, French, or German lawyer or judge would turn to case law and legal doctrine based on case law, a Chinese practitioner is left only with theory or foreign interpretations (Van Rooij 2000).
The lack of case law and doctrine in China has led to the responsibility for interpretation being vested in the legislators. When rules are not clear and need interpretation, legislators may issue new rules to provide further specification, which will only lead to more spatial dislocation. Alternatively, so-called formal interpretations may be issued by selected national entities, such as the National People's Congress and the Supreme People's Courts. Because such formal interpretations are not based on lower-level norms or conflict resolution, they are in no way comparable to case law. In many ways, they are similar to regular legislation.
Thus, the problem is not only a lack of legal certainty. Systems lacking case law as a source of law, such as China, will lack mechanisms to translate local norms into the legal system. Top-down legislative interpretations and specifications will only cause more contradictions between norms in the legal system and local norms. For those countries lacking a system of case law, including countries such as Mali, Indonesia, and China, setting up such a system would be an important improvement and would serve to reduce spatial legal failure.
However, De Soto's case of legal failure shows the limits of case law as a full solution to spatial legal failure.
Case law may serve to bring certainty to abstract state norms and may serve as a tool to translate local norms into state law. However, it will neither bring certainty and unity to local norms nor will it make the state legal system more accessible to the local poor.As we have seen, De Soto wishes for the poor to gain certainty of their extra-legal rights, which are embedded in local and temporal structures. State recognition of such extra-legal rights would not provide the certainty and unity they need. Case law as a source of law would not alter this.
De Soto also fears that ifthe extra-legal rights ofthe poor were translated into legal rights, then the poor would lose access because of the technical nature of the legal system. A system of case law would not solve this. Legal doctrine is highly complex and is very much dominated by legal elites. Otto argues that De Soto’s idea of formalising the poor's rights into the formal legal system will make them inaccessible. Similarly, we may fear that relying on case law to overcome the law’s Catch-22 of balancing certainty and flexibility will not improve accessibility for the poor and the disenfranchised. We can thus conclude that case law may reduce spatial legal failure but cannot solve it for all of the types of problems involved.