Using case law in legal argument

The Republic of Moldova belongs to the civil-law tradition: judgments are not a formal source of law, and a judge is not bound by precedent the way a common-law colleague is. And yet no serious practitioner walks into court without knowing the relevant case law. This guide explains what value case law carries in argument, and how to build with it.

The persuasive force of national case law

The case law of the Supreme Court of Justice does not formally bind lower courts in individual cases, but it carries considerable persuasive force: unifying judicial practice is one of the Supreme Court's functions, and a decision that contradicts its settled position stands a good chance of being overturned on appeal. Showing the judge that the outcome you seek is the one higher courts have already reached in comparable cases lowers the perceived risk of deciding your way.

That is why an argument from case law works best when you demonstrate consistency: two or three concordant judgments, from different years, persuade more than one. The Supreme Court catalogue makes that easy to verify year by year.

The special force of ECtHR case law

Strasbourg case law is a different matter. Moldova is a party to the European Convention on Human Rights, and the Convention — as interpreted in the Court's case law — forms part of the law applied by domestic courts. Invoking a relevant ECtHR judgment is therefore not merely an argument of expediency but one of legality: a court that ignores a clear Convention standard exposes the State to a finding against it in Strasbourg.

In practice this means that in a case concerning, say, excessive length of proceedings, the standards from the Article 6 case law are invoked directly, citing the leading authorities (see how to cite correctly).

How to build precedent into an argument

1. Principle before case. State the rule of law you are advancing first, then show that the case law confirms it — not the other way round. Judges remember principles, not lists of file numbers;
2. The comparable case, not the handsome quotation. Show why the facts of the precedent are analogous to yours — the analogy is the heart of the argument;
3. Anticipate the distinction. If your opponent can say “that case was different”, answer pre-emptively: which differences exist and why they do not matter;
4. Cite verifiably. Court, number, date, paragraph, link to the source — a precedent the judge can check in thirty seconds is worth double;
5. Do not overload. Three well-chosen and analysed precedents beat ten listed without analysis.

The cardinal error: selective precedent

The riskiest habit is citing an isolated judgment when the dominant case law runs the other way — your opponent will demonstrate it, and the credibility of the whole argument collapses. Before building on a precedent, survey the full landscape: semantic search exists precisely to surface the case law that literal search misses, and the similar-cases block on every page exposes related judgments quickly.