Courts, Judges And Judicial Precedent Flashcards
What is precedent?
A statement of law by a court which binds other courts which are of equal or lesser importance
What is the purpose of precedence?
To provide certainty in a system of law which has cases as a source of law.
Where might one find precedent?
Judgments issued by the various courts, law reports
What is the meaning of ‘stare decisis’?
Simply means ‘let the decision stand’. Follow decisions of earlier courts in similar cases. Reasoning, not the outcome.
What is the ‘ratio decidendi’?
The reasoning behind the decision.
What is the meaning of ‘obiter dicta’?
Means something or some things said in the decision which are not part of the ratio. Said ‘by the way’.
What does precedent mean in practice?
A court is bound to follow the decision reached by a superior court in a previous case on the same legal issues. Appeal courts other than the Supreme Court are bound by their previous decisions. Decisions made by lower courts can be overturned by higher courts.
What other means are there of resolving disputes other than in courts and tribunals?
Negotiation, Arbitration and Mediation.
What is the function of the Civil Justice System?
To enforce and protect legal rights
To determine disputes between two or more parties which arise in relation to these rights.
Onus on person making the claim.
Balance of probabilities.
What is the function of the Criminal justice system?
To prosecute those who are alleged to engage in criminal activity and sentence those found guilty.
Onus on prosecution
Beyond reasonable doubt.
True or false: the same incident can have both civil and criminal consequences.
True.
