Courts As Lawmakers Definitions Flashcards
(29 cards)
Common law
Law created in the courts based on previous judgements.
Statutory interpretation
Distinguishing of parliamentary set laws
Parliamentary sovereignty
Parliament has absolute sovereignty and is supreme over all other branches of government (executive and judiciary).
Reason is because as a democratic country, they represent the people and so have the countries sovereignty.
Statute law prevails in dispute with court common-law because population didn’t give sovereignty to the courts.
Negligence
Where an act of failure to act by a person causes damage to another person or to their property. “you must take reasonable care to avoid acts or omissions that can reasonably foresee to enjoy your neighbour”
Lawmaking roles of parliament vs. the courts
Parliament- makes laws in the form of state acts of parliament (statute
Courts- creates precedent (common
Copy a diagram of court hierarchy
High court
__________________|__________________
| |
State courts Common wealth courts
| _________|___________
Supreme courts | |
| Federal courts Family courts
District courts |____________________|
| |
Magistrates court Federal magistrates court
Civil and criminal jurisdiction of magistrates Court
Notes
Civil and criminal jurisdiction of district court
Notes
Criminal and civil jurisdiction of Supreme Court
Notes
Three reasons why court hierarchy exists
Doctrine of precedent
Appeals
Specialisation
Doctrine of President is
Principle that lower courts are bound by the legal principles created in the decisions made by higher courts.
Stare decisis
To standby that decided. It is the foundation of doctrine of precedent
Ratio Decidendi is
Reason for deciding It is the judges legal reasoning for reaching decisions established in the case. It is binding for lower courts and persuasive to sources of equal or higher standing
Orbiter dicta
Statements made by the way. It is additional info made to our judgement. It is persuasive to all courts a.k.a. not binding
Persuasive precedent is
Legal precedent that does not have to be followed. Can be used as a guide by all courts in future cases.
Binding president is
Legal president that must be followed. Locals follow decisions made in higher courts (doctrine of President.). In order to use, it must be courts of the same hierarchy and cases must be similar
What is following common-law
Subsequent court applying the precedent set in previous decisions of case.
Example negligence in Donoghue v. Stevenson to grant v. Australian knitting Mills
What is reversing common-law
Higher court is a case on appeal and decides lower court which had heard the case wrongly decided the case, it will reverse the decision.
Ratio decidendi of lower court no longer valid, replace by higher courts one.
Example studded belt Supreme Court repealed decision of magistrates Court.
What is overruling common-law
case in a higher court that relies on legal principles that have been formed an earlier case in lower court.
Judge in higher court may believe earlier case was wrong we decided and higher court doesn’t follow precedent set by law court, it overalls LU decision.
What is disapproving common-law
Courts at equal standing on not binding on each other.
When Judge from equal standing refuses to follow decision made they disapprove.
May result in appeal and higher court to determine law
How is common law made: negligence
Look at notes
Decision of House of Lords in Donoghue V. Stevenson
Ratio to send I that was that Manufacturer Stevenson are used a duty of care to final consumer. To follow tort of negligence.
-Introduced neighbour principal.
-Neighbour is anyone who is so closely and directly
affected through loss or injury by the actions of
another, so much that it is reasonable to
contemplate how one’s actions could affect them.
= Stevenson reasonably could contemplate how actions could affect final consumer
Advantages and disadvantages of common-law
Advantages.
-Consistency – the doctrine of President insures consistency through the use of President.
-Political independence – unlike parliament, courts not dominated and controlled by a party policies or ideology.
-Unforeseen cases – can examine and develop responses to real life situations.
Disadvantages.
-Lack of review.
-Easily overridden by legislation.
Why is statutory interpretation needed
Ambiguity in law due to:
– drafting problems
– inconsistencies and contradictions
– words and definitions.
****Parliamentarians don’t have experience and
expertise with law.
They may:
– have loopholes
– interpret in a way not intended
– contradict with similar one
– have a vague or interpretational definition
