Chapter 5: part a Flashcards
(24 cards)
What is the main purpose of the courts?
Settle disputes that arise in a community
- primary responsibility = apply existing laws to the facts in cases that come before the court and to make a determination on case based on those laws.
What is that secondary role of the courts?
Law making
- as this type of law evolves through judicial decisions in legal cases, it is often referred to as judge made laws.
Other names for judge made laws
Case law
Common law
Names for laws made through parliament
Stature law
Or
Legislation
What is precedent
- when a court makes a decision In a case that is the first of its kind, the court is said to be setting a precedent.
- precedent = statement of law made through the courts, must be followed in similar cases that come before the courts in the future. These precedents then form part of law.
Ratio decidendi
- most important part of the judgement is the reason for the decisions.
- to ensure consistency in decision making, courts ranked lower in the same hierarchy must follow the ratio decidendi of superior Courts.
Exceptions to precedent
- does not apply to sanctions or remedies handed down by court.
- it is not the sentence or remedy that is the precedent for future decisions but the reason provided for the decision.
What are the two types of precedent
- binding
- persuasive
What is a binding precedent?
- Definition: is binding and MUST be followed by lower courts in the same hierarchy
- This precedent is binding on a new case when
- material facts from the new case are similar to that of the precedent case.
- the precedent was set in the higher court of the same hierarchy as the new case.
What is persuasive precedent?
- precedent is not binding
- decision in another court hierarchy may have made an important statement of law in a similar case and this may persuade another court to follow precedent.
Case law
Laws mad by the courts
Precedent
A courts decision that is the first of its kind
Ratio decidendi
Reason a court gives for setting a precedent
Obiter dictum
Statement a court makes in setting a precedent that is related to the main issue in the case but does not form part of the reasons given for the decisions.
Binding precedent
Decision made in superior court that just be followed by inferior courts in the same hierarchy.
Persuasive precedent
Past decisions where the court can choose whether or not to follow the precedent set.
Distinguish
When a court does not follow a binding precedent because the main facts of a case are sufficiently different from the facts in the binding precedent
Reversed
When a case goes to appeal and the appeal court changes the precedent set in the original court.
Overrule
When a precedent from a lower court is changed by a superior court that is deciding a different case with similar circumstances.
Disapproved
Statement made when a court dislikes a precedent but does not have the authority to change it .
Statute law
Laws made under the authority of parliament
Court hierarchy
When courts are ranked according to the order of the seriousness of the cases they Handel .
Statutory interpretation
The process where a judge clarifies or interprets the laws written by parliament.
5 other reasons statutory interpretation is required
1) mistakes/ typos: courts need to decided what was intended to be said
2) act might not include types of technology: courts need to consider whether the use of a particular word applies to newer
technology.
3) a word may not be defined in the act: if a word is not defined courts may need to consider what it means.
4) meaning of the word may be ambiguous: public place, intent to supply.
5) meaning of word can change over time. ‘De facto relationship’ used to apply to man and woman living in a domestic relationship.
