area of study 1 - key knowledge Flashcards
(12 cards)
sources of law
common law and statute law
statute law
law made by the parliament and delegated bodies - also known as legislation
e.g. crimes act 1958
common law
law made by the courts - also known as judge made law or case made law
e.g. Donoghue and Stevenson 1932
relationship between parliament and the courts
they have a complementary relationship. the main role of parliament is to make laws whereas the main role of the courts is to resolve disputes. Parliament and the courts need to work together make sure laws are workable and enforceable
4 main features of the relationship between parliament and the courts
- interpretation of statutes by courts
- the codification of common law
- the abrogation of common law
- the ability of courts to influence parliament
criminal law
body of law that protects the community by establishing crimes and setting down sanctions for people who commit crimes.
e.g. murder, theft or assault
civil law
area of law that regulates disputes between individuals and groups and seeks to enforce rights where harm has occurred. The aim of civil law is to remedy a civil
e.g.. tort law (negligence, defamation etc.) and contract law
distinction between civil law and criminal law
in criminal law if a crime is committed that person is guilty of the offence, a sanction may be imposed on that person. In case involving criminal law there are two parties - the state and the accused. Whereas civil disputes are private disputes and do not involve police or the state. the two parties in a civil dispute are the plaintiff and the defendant.
the victorian court hierarchy
Supreme Court - court of appeal and trial division
County Court
Magistrate’s Court
4 main reasons for the court hierarchy
- the court hierarchy allows for expertise or specialisation
- the court hierarchy enables the parties to a court case to appeal to a higher court if they are not satisfied with the decision from the lower court.
- court hierarchy is a necessary part of the doctrine of precedent (law-making through courts) because the process of law making through courts depends on the decision being made in a higher court which is binding on lower courts.
- a court hierarchy allows for administrative convenience
why is the court hierarchy necessary for precedent
doctrine of precedent which means that all decisions made made in a higher court become binding on all lower courts in the same hierarchy. This creates what is known as precedent which allows for consistency in all similar cases meaning that they are all treated in a similar matter.
why is the court hierarchy necessary for appeal
An appeal is when somebody is dissatisfied by the decision made by the court and decide to appeal the cause which means that the case would be heard again at a higher courts. This provides fairness and will allow any mistakes made in the lower court to me fixed in the higher court. A system of appeals cannot operate without a court hierarchy as there would be nobody to appeal to which would create unfairness and unreliability within the court system.
