Research On Karl Llewellyn's Thoughts About Case Law

Legal realism is an important campaign that influences the development of American law, legal education and legal practice. As the leader of American legal realism, Llewellyn formed his legal realism thought by studying cases and reconstructed the related theory of case law by using his legal realism. Although there are dissents in the academic field on some of Llewellyn's thought, people accept his thoughts about case law widely. Some of his statements on cases became classic and are cited widely.In Llewellyn's thought, case law and statute law are both important source of American law. Case law exists in cases and it is created by judge in the course of settling disputes. In order to master the rule in cases, you should not only study the opinions of the court, but also the related materials. And you should review the cases with a skeptical attitude and regulatory purpose. The principle of stare decisis is double faces in which strict view and loose view exist together. The strict view is used to limit the unpopular cases or some parts of cases and the loose view is used to extend the popular cases and some parts of cases. In applying the precedents there are indeed some techniques which are ignored by people, and more than 64 are listed by Llewellyn. Stare decisis instructs the judge to cite precedents.As chief of drafting group of United Commercial Code, Llewellyn's case law thought seems to have contradiction with the Code, however in fact it does not. Code and case law are both formed under the direction of realism. Code does not replace the existing case law. In the uncovered field of code, the general principle and rules in case law still apply. Code and case law united in one purpose to realize the legal modernization and obtain the ideal legal rule.The purpose of studying Llewellyn's case law thought is to understand the Chinese system better, including ancient cases with Chinese feature. Deep understanding of case law and Chinese system will do great help to reflect the practice in China.