Chapter 7: intro to legal reasoning Flashcards
What is Case law/common law?
Law developed by judges in superior courts and tribunals
What is the doctrine of precedent? And how does strictly binding and persuasive differ?
A set of principles that determine whether the law expounded in a case should be followed in later, similar cases.
Strictly binding is when the present court must apply principles of previous cases
Persuasive is when court may avoid applying principles but can rely on previous cases where desired
Only ratio decidendi of a case is binding
Obiter dicta are not considered binding but may be persuasive
What is the rationale behind doctrine of precedent? And counter arguments to the doctrine…
- Stare decisis promotes certainty because law follows clear guide for conduct of individuals reducing disputes
- Seeks to achieve equality by treating like cases alike
- Limits judicial law-making
- Reduces court time
- Promotes efficiency
- Promotes appearance of justice by creating impartial rules of law not dependant on biases
However…
Precedents do not lose authority merely through passage of time
Some retain legal authority despite being out of step with modern societal values
Can be seen as undemocratic
Unelected people approving outdated laws
If legislature alters law they can change it by making legislation
What is stare decisis?
The doctrine of binding precedent; “stand on what has been decided”
What is Ratio decidendi?
The reason for a decision in a case based on material facts
Role of court hierarchy
Hierarchy of courts establishes avenues of appeal and determines which precedents are strictly binding i.e if an inferior court fails to observe doctrine of superior court it will correct its decision on appeal
Dual meaning of jurisdiction
a) territory over which legal power extends
b) function of extent of authority of court in relation to matter before it
Obiter dicta
Judicial statements of law not strictly necessary for present decision
Equitable estoppel
Where court will not grant a judgement or legal relief to a party who has not acted fairly
What authority to judiciary’s hold in law making
Judiciary function is to interpret and apply existing law to resolve disputes
- where there is no Australian precedent, trial judge may obtain assistance from foreign jurisdictions
- if presented with gap in the law judge has power to change the law
Ways that precedents are distinguished
- distinguishing of facts
- statement of law too wide
- statement of law in previous case was obiter
- precedent is too old
- precedent is simply too unsatisfactory
- precedent is wrongly decided
English court hierarchy
Supreme court of UK
Court of Appeal (criminal and civil division)
High court of justice
Current status of Privy council decisions
Decisions made after Australia Act are not binding on any court in Australia; merely persuasive
