AOS 3 (the role of the courts in law making) Flashcards
doctrine of precedent
the common law principle that the reasons for the decisions of higher courts are binding on lower courts so that the same legal principles can be applied in the same way, creates consistency, certainty and coherency
stare decisis
means to stand by what has been decided, underpins the doctrine of precedent
ratio decidedi
the reason for a court’s decision, becomes the principle of law to follow in future cases
binding precedent
when an inferior court is bound to follow the legal principles delivered in a similar case by a superior court in the same hierarchy
persuasive precedent
when a court is not bound to follow a previous decision, however the relevant ratio decideni can be influential, generally stem from decisions from lower courts or courts on the same level in the same hierarchy or courts (higher or equal) from other hierarchies, or obiter dicta (comments made by the way) in the same hierarchy or other hierarchies
Reversing
when a case has been taken on appeal to a higher court and the higher court may change the decision made by the lower court, hence reversing the decision
Overruling
when a higher court decides not to follow the precedent of a lower court in a case, and the new ratio decidendi in the latest case forms the new case, making the old precedent inapplicable
Distinguishing
when a court identifies the important material facts of the case as different from the one in the precedent case, thus the court isnt bound to follow the previous decision
Disapproving
courts at the same level aren’t bound by each other’s decisions, so when a judge refuses to follow an earlier precedent, this is called disapproving. A court can disapprove of a precedent but still apply it because of stare decisis or because its binding. A court lower in the hierarchy can hope that parliament may pass legislation to change the law, or that parties appeal to a higher court that can change that precedent.
statutory interpretation
the process of judges giving a more up to date or specific meaning to words and phrases in legislation, thus forming ratio decideni and precedent from the case
why?
- the words may be ambiguous
- parliament might not have perceived all possible circumstances (kevin and jenner case)
- wording may be broad (deing v tarola)
- society’s views may have changed over time
effects of statutory interpretation
precedent may be set:
for future cases to follow, for example in brislan’s case the phrase ‘telegraphic, telephonic and other like service was interpreted to include radios
precedent may prompt parliament to respond:
they can either codify the decision or abrogate the decision by passing a law
e.g. kevin and jenner, parliament amended the marriage act
meaning is narrowed:
words in legislation given a more specific meaning, in the studded belt case a precedent was set on the meaning of the word ‘weapon’
4 relationships between courts and parliament
parliament passes laws that establish and gives authority to courts
courts can interpret words in the legislation that parliament passes
parliament can codify or abrogate laws made by courts
the court’s decision in cases can influence parliament to change laws `
saw of courts as law makers
s: doctrine of precedent provides consistency, certainty and coherency, and it leads to fairness and predictability for people taking their cases to court
w: however, doctrine is too rigid and can sometimes be outdated, furthermore, courts tend to be conservative and reluctant to change the law
s: courts make laws free from political pressures, independent, dont face political backlash
w: courts are not democratically elected, so the public is not involved in their law making, which may result in laws that are not consistent int he views and values of people, rape in marriage 1985
s: common law can be flexible, courts can alter laws through reversing, overruling and distinguishing. the hC is also not bound by their previous decisions, so comm law changes as society changes
w: they cant actively seek to reform or initiate a change in the law, they are only limited to the cases that come before them
