Flashcards in The Concept Of Law Deck (22):
‘Stare decisis’ is Latin for:
Let the decision stand - this doctrine requires our courts under the Common Law system to follow the rulings and decisions in precedents (previously decided cases)
The doctrine of ______ ________ provides certainty, uniformity and predictability which promotes a stable legal environment.
‘Per incuriam’ is Latin for:
In error. Characterised by lack of proper regard for the law or the facts
What is “distinguishing”?
In regards to precedent, a judge “distinguishes” by making a decision about significant factual differences between the current case and the precedent case
What is “overruling”?
When a court is asked to review whether a precedent from a lower court is correct law
What is “reversing”?
When a higher court changes the decision of a lower court on the same facts
________ precedent that is not absolutely binding on a court but which may be applied.
Persuasive precedent. The judge will refer to these precedents, and can influence their decisions, but they are not bindinf.
A _____ precedent is a decided case which the court must follow.
Binding. Bidning judicial precedent is based on the premise that the function of judges is not to CREATE law, but to FIND law in comformity with existing legal rule.
The _____ is “the supreme law of the land..”
The Constitution (Jamaica Orders-in-Council Constitution , section 2
The process of making laws is known as ______
What is primary legislation?
Primary legislation is laws made by Parliament (statutes)
What is secondary/subsidiary legislation?
Secondary legislation is made by a government authority that is given power by Parliament to make such legislation.
Accordung to the Declaration of Dehli 🇮🇳, what are the four fundamentals of the “Rule of Law?”
1. The legislature
2. The executive
3. The judiciary and legal profession
4. The criminal process
What are Professor Dicey’s three universal principles of the Rule of Law?
1. No man is punishable..except for a distinct breach of law established in the oridnary legal manner
2. No man is above the law
3. The general principles of our constitution...are with us the result of judicial decisions determning the rights of private persons in particular cases brought before the Courts
How did Professor Fiadjoe describe the Rule of Law in Commonwealth Caribbean jurisdictions?
“In West Indian public law...it has come to mean the exercise of State power according to law and the subjugation of state power to the constitution. The phrase is a useful compendium to define the bundle of citizens’ rights or legitimate expectations to hold the State accountable for its actions.”
____ as a source of law was originally inspired by ideas of fairness and natural justice.
what is 'rectification'?
The equitable remedy of correcting of mistakes made in recording agreements. By its nature, rectification is only applicable in the case of written contracts.
What is 'restitution'?
A remedy based upon the principle of unjust enrichment. For the claimant to bring a restitutionary claim, the defendant must have been unjustly enriched at the expense of the claimant.
What is the Mareva Injunction?
a court order freezing a debtor's assets to prevent them being taken abroad.
What is an Anton Piller order?
a court order which requires the defendant in proceedings to permit the plaintiff or his or her legal representatives to enter the defendant's premises in order to obtain evidence essential to the plaintiff's case.
True or false: a Court of Appeal is bound by its own decisions.
True. See - Vierra v. Winchester (1966)