AOS 1 Legal foundations Flashcards
(29 cards)
ratio decidendi
latin, meaning ‘the reason’ behind a judge’s decision. forms the binding part of a precedent
social cohesion
term to describe the willingness of members of a society to cooperate with each other to survive and prosper
precedent
principle established in legal cases that is followed by courts in cases where the material facts are similar
access
all people should be able to understand legal rights and pursue their case
e.g. having contact with bodies that provide legal advice
equality
people should all be equal before the law with no advantage or disadvantage
e.g impartial jury members which have no links with either party
fairness
parties in a legal case should have the opportunity to know the facts of the case and present their side of events
e.g. processes involved in determing a case are fair and impartial
persuasive precedent
the decision of a lower court may be considered relevant despite not being binding
binding precedent
the decision of a higher court that must be followed by a lower court in the same jurisdiction where material facts are similar
characteristics of an effective law
- reflects society’s values
- is enforceable
- is known
- is clear and understood
- is stable
accepted by the majority, possible to punish, civil responisibility
common law
law made by judges through decisions in cases
statute law
law made by parliament
original jurisdiction
case that has never been heard before
appellate jurisdiction
case that has been heard before and is being appealed
magistrates court does not have appellate jurisdiction
order of courts in victorias court hierarchy
magistrates court, county court, supreme court trial division and court of appeal
process of making statute law
- bill is introduced into the lower house and debated and discussed
- bill is passed to upper house and debated and discussed
- the governer general gives royal assent and it becomes an act of parliament
abrogation
if a court makes a law deemed inappropriate, parliament may pass law overriding (abrogating) the court-made law
if the law may be interpreted wrong
courts and the law
- court decisions give parliament a reason to introduce a new law
- courts apply the laws of parliament
codification
parliament can confirm common law principles, adding or amending when putting such principles into statute form
putting case-made law into effect
obiter dictum
comments made by the judge in a case that may be persuasive in future cases (even though they are not binding)
summary offences
minor offences
heard by magistrates
indictable offences
major offences
heard by supreme/county
criminal law
- behaviour breaching existing laws against society
- an act or omission
- must be proved beyond reasonable doubt
- prosecuted on behalf of the crown
e.g. crimes against the person, crimes against property
civil law
- infringement of an indivduals rights
- aim to return the person back to their original position or provide compensation
- case must be proved on the balance of probabliities
e.g. tort law, family law
role of laws
set expectations for and protect rights of individuals. set out how disputes can be peacefully resolved
