Courts and law making Flashcards
Civil cases
Private dispute between people or companies
Criminal case
Public dispute between a natural person and the state/corporation
Constitutional case
Dispute about the meaning of the constitution or the application of its limits
Jurisdiction
Official power to make legal decisions and judgements
General jurisdiction
Courts can hear a wide range of cases including civil and criminal matters and administrative law
Major jurisdiction
Jurisdiction in civil and criminal disputes
Non justiciable
West minster conventions are incapable of adjudication by the court as there are no texts to interpret
Original jurisdiction
When the court hears the case for the first time
Appellate jurisdiction
When courts hear a case on appeal
What are the jurisdictions of the District court vs Magistrates court
Both have general jurisdiction, District court also sees more serious cases
Why do statutes need to be interpreted (5)
Word meanings, inconsistencies and contradictions between acts, inconsistencies and contradictions within acts, drafting error and time and changing circumstances
What does it mean that statute law is written ‘in futuro’
Laws made that foresee future problems
Why is the principle of ‘stare decisis’ applied (3)
Fairness meaning parties are treated the same in similar cases, predictability and consistency
What is ‘ratio decidendi’
The idea that judges must explain why and how they decide a case
What is ‘obiter dicta’
persuasive ‘by the way statement’ as judges only include the main reasons and some other considerations they took
What is ‘Stare decisis’
When courts stand by what has been decided before them
What is persuasive precedent
Can influence higher courts but they aren’t forced to follow it
Doctrine of precedent avoidance mechanisms
Distinguishing, overturning, reversing, disapproving
Distinguishing precedents
If a party thinks the facts are different from the previous cases, they can convince the judge to distinguish the case, so the past precedent doesn’t apply
Overturning precedents
Superior appellate courts have the power to overrule precedents, so we don’t have outdated law applying to modern law
Reversing precedents
When cases are appealed to a higher court which finds that the original decision was wrong meaning it substitutes its ratio decidendi in place of the lower courts in turn reversing the original decision
Disapproving precedents
Lower courts can express disapproval of a precedent despite having to apply it. Their ration outlines the reasons why they think the law is unjust and the judges are essentially inviting a party to appeal to a higher court where a different decision might be made
Can also occur between courts on the same level where both precedents stand until a higher court resolves the conflict
Strengths of law making in the courts
Courts can change law quickly if a relevant case is brought before them.
Can’t be influenced by the politics – ultra vires, Precedents are predictable, Up to the courts to interpret laws and make precedents
Courts are consistent, Can be more flexible for specific cases
Weaknesses of law making in courts
Courts cannot change the law unless a case is brought before the court.
If Parliament doesn’t like an outcome, they can create statute law to abrogate it, Lower courts have no choice but to follow precedents from higher courts, Abrogate
Differences between parliament and courts
Parliament is elected and responsible to the people, makes statute law in futuro, can make broad and general but rapid change and have delegated legislation, Courts have judges that aren’t elected, make precedents/common law ex post facto, make specific but slow decisions, no delegated powers
Similarities between parliament and the courts
Parliament makes new law and amends new law, courts make precedent on new issues and can over-rule old precedents, commonwealth law and high court precedents are superior, both use majority rule to make decisions
