24/02 - Sources of Law Flashcards
What is legislation?
Set out by Parliament
Encompasses delegated legislation where another body makes laws on behalf of Parliament, such as local councils.
What happens when there is a conflict between Commonwealth and State legislation?
Commonwealth prevails
Commonwealth and State legislation exists in parallel.
What prevails over common law?
Legislation
Legislation takes precedence over common law.
What is case law or common law?
Rules developed over time followed by courts despite the absence of legislation
Common law acknowledges that the legal system is more than just legislation.
How is common law identified?
Through reading cases
Encourages coherency and consistency in decision making.
What is meant by ‘binding’ in legal terms?
Ratio decidendi or reason for the decision is binding on later, lower courts
This applies within the same hierarchy.
What are ‘persuasive’ legal precedents?
Obiter dicta or comments that touch on the law but do not impact the final decision
Includes reasons from minority or dissenting judges.
What is the significance of ratio decidendi?
It is binding on later, lower courts
Seniority in the same hierarchy applies.
What is obiter dicta?
Comments made that do not impact the final decision
Can include dissenting opinions or minority judges’ reasons.
What is a characteristic of persuasive precedents?
Good argument to follow but cannot be said to be binding
Examples include reasoning from non-binding courts or different jurisdictions.
How does legal precedent develop?
Develops over time based on previous cases
Sources of law operate in conjunction.
Fill in the blank: The reason for a decision that is binding on lower courts is called _______.
ratio decidendi
True or False: The comments made by dissenting judges are considered binding.
False
Dissenting opinions are not binding but can be persuasive.
Fill in the blank: The legal system acknowledges that _______ is more than just legislation.
common law
What is the role of the Commonwealth legislation compared to State legislation?
Commonwealth legislation prevails in case of conflict
They exist in parallel.
