A fundamental principle underpinning the rule of law is that courts should provide written reasons for their decisions. This is important in all jurisdictions, including common law ones, where case law or judge-made law is a source of law. This column has previously noted that judges in common law jurisdictions must provide detailed reasons for their decisions so that the law can be understood as clearly as possible. Further, the reasons must be accurately recorded in law reports made available to the public so that other courts, lawyers and society generally can review decisions and find out about the law [see China Business Law Journal volume 3, issue 2: “Binding or persuasive?”].
This article discusses the history and use of law reports in common law jurisdictions and outlines the legislative basis on which courts provide written reasons in mainland China.
The history and use of law reports in common law jurisdictions
The history of law reports in England is very long and can be traced back to the 13th century, when law reports in the form of “Year Books” first appeared. The authorship of the Year Books is unclear and has been subject to much debate and conjecture by legal scholars. One theory is that a group of lawyers decided that it would be useful – and profitable – to produce reports of decisions of the medieval royal courts and employed assistants to take notes for this purpose. In medieval England, many judges learned their trade through working as assistants on these Year Books. Although the books sowed the seeds for the development of modern law reports, they were often incomplete and failed to identify the point of law on which the judge had decided the case.
In the 17th and 18th century, Year Books were succeeded by “private” law reports that were edited by judges and eminent practitioners. Like the Year Books, however, these law reports were of variable quality and were sometimes inaccurate. The most famous and reliable law reports were those edited by Edmund Plowden, a legal scholar, and Edward Coke, a barrister and judge. By the end of the 18th century, certain law reports came to be recognised as “authorised reports” on the basis that the reporters were recognised and assisted by judges. Today, the term “authorised reports” refers to reports containing judgments that have been reviewed by the judge or the judge’s associate prior to publication.
In 1865, the Incorporated Council of Law Reporting – a non-profit organisation – was established in England to produce a series of authorised law reports, all of which have continued to today. Included in the series are the Law Reports, Appeal Cases (AC), which cover the decisions of the final court of appeal in the UK: the Supreme Court of the UK. The Supreme Court assumed the judicial functions of the House of Lords in 2005. These law reports, however, are not comprehensive and only contain cases that are considered to be significant for various reasons (e.g. those cases that introduce a new principle or a new rule).
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A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew Godwin is currently on secondment to the ALRC as Special Counsel to assist with its inquiry into corporations and financial services regulation. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com