AC1.1- JUDICIAL PROCESSES Flashcards
What are the two processes judges use to make a new law?
Judicial precedent and statutory interpretation
What is the judicial precedent?
Type of law making where past decisions by judges create law for future judges to follow
What is the judicial precedent based on?
The principle of standing by/ following what judges have decided in previous cases
What does the judicial precedent create?
Fairness and consistency in the legal system
What has developed a lot from following decisions made in earlier cases?
The law of the land
What happens when a decision is made by the higher courts (Supreme Court)
Automatically creates an original or binding precedent for all lower courts to follow when dealing with a similar case
What are the two main exceptions in courts following precedent?
Distinguishing and overruling
What is distinguishing?
When a precedent is only binding on a present case if the legal principle involved is the same and the facts are similar in both cases
Means that the judge finds facts in the present case different from the earlier one so they can reach a different decision
What is overruling?
Where a court higher up the hierarchy states that a legal decision made in an earlier case is wrong and overturns it
e.g. the Supreme Court can overrule a lower court’s decision when it hears and appeal
What is a case study for the overruling of a judicial precedent?
R v R (1992)
What happened in the R v R case study?
-Husband convicted of attempting to rape his wife
-Appealed on grounds of centuries-old precedent that a husband couldn’t be guilty of raping his wife as the marriage contract gave a wife’s irreversible consent to sex
-Appeal court overruled this that the idea of irreversible consent was unacceptable today as couples are now seen as equal partners in marriage
What is statutory interpretation?
Where a judge interprets the statutes (written laws) or Acts of Parliament- judge must interpret the meaning of its words and apply them to the case they are judging
What are the three main interpretation rules judges have to help them in statutory interpretation?
The literal rule, the golden rule and the mischief rule
What is the literal rule?
Where judges should use everyday, ordinary meaning of words in the statute
What is a problem with the literal rule?
Words can have several dictionary meanings
