Judical Branch Flashcards
What is the common law
A system of rules based on precedent.
How does the common law evolve?
The common law evolves on a case by case basis as disputes are taken to court and worked out.
How do judges resolve disputes through the common law?
Judges resolve disputes by looking at decisions that judges have made in the past. Also known as precedent.
What is the doctrine of precedent, in brief?
The doctrine of precedent, a fundamental principle of english law, is a form of reasoning and decision making formed by case law.
Must judges follow precedent?
Precedents not only have persuasive authority but also must be followed when similar circumstances arise. Judges cannot decide to disregard relevant precedent, they cannot decide the case any way they like.
What is the hieracy of the courts?
Courts are bound by the decisions of the higher courts,. For example, a district court cannot overturn a decision made by a court higher up. Courts are bound by the decisions of higher courts.
Why is it nessacary for courts to adhere to precedent?
First, it helps to maintain a system of stable laws. This gives predictability to the law.
Secondly, it ensures that the law only develops in accordance with the changing perceptions of the community.
Judges develop the common law under a system of precedent
Do Judges make the common law?
Yes - The common law is judge made law.
What do judges do?
It is a judges job to narrowly interpret legislation when applied to cases. It is a judges job to apply the common law in a fair and just manner when required.
What are disputes between private individuals called?
Private law
What is criminal law?
When the state institutes criminal proceedings against individuals for breaking the criminal law. They are subject to criminal penalties I.E Jail time, Fine, etc.
Non criminal disputes are named Civil Jurisdiction they are engaged in civil litigation.
How can judges change the law?
Judges can pass decisions which change the precedent and therefore the law, parliament can overturn these decisions by passing legislation. I.E Foreshore and seabed act.
How do judges narrowly interpret statutes when deciding cases?
Certain rules judges must follow when giving meaning to the law. They must define the words of the statute or in other words they are bound by the wording of the statute when they make their decision.
Judges must apply the law as it is written in statues. Sometimes applying statutory law can be tricky.
When the courts are interpretting the law, in essence, what are they doing?
They are making the law by interpreting it.
Are judges decisions final?
Yes and no. Judges decisions can be appealed. Decisions made in the court of appeal can be appealed in the same court. However, a judgement from the supreme court cannot be appealed by the court of appeal.
The hierachy of the courts also applies in this sense.
