Foundations Flashcards
Sources of law
Cases and legislation
What are the senses that common law is used?
- Common law = judge made law
- Common law = the system of law developed in England from 1066 and adopted in (English speaking) countries such as Australia, the US, India, NZ, Canada, Ireland, Kenya, Malaysia
Civil Law and Civil Law countries
Civil Law = all laws are contained in documents called ‘codes’
Most of continental Europe: France etc
Thailand, Japan, some South American countries: Argentina, Brazil, Bolivia
Inductive v Deductive
Common law = Inductive, it moves from the specific case to the general rule, case-based reasoning
Civil Law = Deductive, it involves the application of abstract reasoning to specific cases
Corpus Juris Civilis
Body of Civil Law
Legal History
Battle of Hastings 1066
Feudal System - social hierarchy of land ownership
Stare decisis- ‘stand by decisions’ (precedent)
Curia Regis - King’s Court, advised the king on various matters before he made decisions
Justices in Eyre - traveling justices
Court of Common Pleas - disputes between commoners
Court of the Exchequer - heard financial disputes involving the Royal revenue
King’s Bench - cases involving royal interests
Writ system
Writ = command from the King that something has to be done
Plaintiff = person making the complaint
Focus on Procedure in the common law
Equity
A body of law applied according to notions of fairness
Highly discretionary
Court of Chancery - heard equitable claims
Equitable maxims: he who seeks equity must do equity
He who comes to equity must come with clean hands
Rule: when the common law and equity conflict, equity should prevail
Constitutionalism
Magna Carta 1215 - King John signed, agreeing to demands: justices to be educated in the law; no arbitrary punishment or imprisonment - Habeus corpus; justice would be neither delayed nor denied.
Model Parliament 1295 - Edward I
Reformation 1517
Case of Prohibitions del Roy 1607
Case of Proclamations 1611 - held that the King could not create new crimes, nor change the law, by royal proclamation
Bill of Rights 1689
Act of Settlement 1701 - gave judges security of tenure
Rule of Law
Dicey
- Absolute supremacy of government BY law
- Governments can only act if they have specific legal means to do so
- A person may only be punished for a breach of the law
KEY = principle of legality
Government must have lawful authority for every action they take
Separation of Powers
3 distinct organs of the state:
The Legislature = enacts laws
The Executive = applies those laws
The Judiciary = resolves disputes about the meaning/application of the law
This separation stops one institution from holding all the power
Australian Legal System Timeline
1717 - Geo 1, c 11
British statute permitting judges to commute death sentence to transportation. In time this led to establishment of Australian colonies.
1786 - Orders in Council designated NSW as a place to which prisoners could be transported
26 January 1788 - Arrival of the First Fleet
- Penal Law and military rule
- Terra Nullius - Legal fiction!***
Letter Patent - letters from the Crown containing public instructions
Ellis Bent - first civilian judge 1810
NSW Act 1823 - establishes the Supreme Court of NSW and the Supreme Court of Van Diemen’s Land; gave colonial judges equal security and independence gained by English judges arising from Bill of Rights 1689 and Act of Settlement 1701; Sir Francis Forbes First Chief Justice -Rule of Law in Australia owes much to Forbes; Legislative Council
Appointment of Governor Darling 1825; Executive Council
Australian Courts Act 1828 (temporary measure until colony ready for responsible government) - all laws and statutes in force in England on 25 July 1828 now apply: Legislative Council increased; Governor’s power to ignore the advice of LC eliminated
Trial by jury in criminal trials introduced 1833 Judicial Committee Act 1833 3&4 Will 4, c 41
Created a Judicial Committee of the Privy Council to hear appeals from colonial courts.
Australian Constitutions Act (No 1) 1842 - 3 separate branches of govt
Australian Constitutions Act (No 2) 1850 - Victoria; Qld
1855 - NSW Constitution
1865 - Colonial Laws Validity Act 1865
1885 - Federal Council of Australasia Act
1900 - Commonwealth of Australia Constitution Act
1914–1919 - WW1
1926 - Balfour Declaration
1931 - Statute of Westminster (Imp)
1942 - Statute of Westminster Adoption Act
1939-1945 WW2
1968 - Privy Council (Limitation of Appeals) Act 1968 (Cth) A Cth Act which abolished appeals to the Privy Council on federal matters.
1975 - Privy Council (Appeals from the High Court) Act 1975 (Cth)
A Cth Act which abolished appeals to the Privy Council from the High Court on matters of state law.
1985-1986 - Australia Acts - In 1985 the States passed Australia Acts (Request) Acts and the Commonwealth passed the Australia (Request and Consent) Act. In 1986 British and Commonwealth Parliaments passed identically worded Australia Acts, coming into force on 3 March 1986. This stated that the British Parliament no longer had the power to legislation for the Commonwealth, the States, or the Territories.
The Australia Acts also abolished State Appeals to the Privy Council.
stare decisis
‘To stand on what has been decided.’
The doctrine of precedent, case law. Judge made law.
Rules of the doctrine of precedent
- Each court is bound by decisions of courts higher in its hierarchy;
- A decision of a court in a different hierarchy or lower in the same hierarchy may be persuasive but not binding;
- A court is not bound by its own past decisions but will depart from them with reluctance;
- Only the ratio decidendi of a case is binding;
- Orbiter dicta (‘remarks in passing’) are not considered binding but may be persuasive;
- Precedents do not lose their force by lapse of time; and
- It is axiomatic that precedent applies only in respect of propositions of law constituting the ratio decidendi of a decision. Conclusions of fact by a superior tribunal or court in the judicial hierarchy do not bind and inferior tribunal or court , especially indifferent proceedings.
Rationale for the doctrine of precedent
The doctrine of precedent promotes:
Certainty;
Equality, by treating like cases alike;
Efficiency, subsequent courts need not expend time and resources to reconsider an issue; and
The appearance of justice, by creating impartial rules of law not dependent of the personal views or biases of a particular judge, by impersonal and reasoned judgments.
