14.2 The Role of the Court in Law-making Flashcards
When do courts make law?
- when courts resolve a dispute in which there is no existing law
- when courts resolve a dispute in which there is an existing statute by the statute requires interpretation so it can be applied to the case before the court
What is statutory interpretation?
the process by which judges give meaning to the words or phrases in an Act of Parliament
What is precedent?
a principle established in a legal case that is followed by courts in cases where the material facts are similar. Precedents can either be binding or presuasive
What is stare decisis?
A Latin term meaning “let the decision stand”, which is the basic principle underlying the doctrine of precedent (lower courts following the reasons for decisions of higher courts)
What is Ratio decidendi?
“The reason for the decision” a court judgement is a statement by the judge that outlines the decision and the legal reasoning behind the decision
What is binding precedent?
The legal reasoning for a decision of a higher court that must be followed by a lower court in the same jurisdiction in cases where the material is similar
What is persuasive precedent?
The legal reasoning behind a decision of a lower court within the same jurisdiction, or a court in a different jurisdiction, that may be considered relevant even though it is not binding
What is obiter dictum?
A Latin term meaning “by the way” Comments made by the judge in a particular case that may be persuasive in future cases (even though they do not form a part of the reason for the decision and are not binding)
What is RODD?
Ways that that judges can treat previous precedents: Reversing, overruling, disapproving, distinguishing
What can a judge decide when considering precedents?
- adopt the precedent
- choose not to follow the existing precedent
What is Distinguishing a precedent?
A judge may be able to avoid following an existing binding precedent if they can find a difference between the material facts of the case
What is Reversing a precedent?
When hearing a case on appeal, a judge in a superior court may disagree with and decide to change the previously established precedent set by the lower court
What is Overruling a precedent?
A judge in a superior court may decide not to follow a previously established precedent set by lower court in a different and earlier case, thus making new precedent
What is Disapproving a precedent?
Judges and magistrates in lower courts who are bound to follow precedents set by superior courts may express dissatisfaction with the precedent (however they cannot avoid it)
