Judicial Law-making Flashcards

1
Q

what is the school of thought regarding judges regarding their role?

A

to apply law not make it

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2
Q

How do judges now actually go further than merely applying the law?

A

Judges use precedent to create new law and to extend old principles

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3
Q

Where do nearly all the main rules which govern the formation of contracts come from ?

A

decided cases

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4
Q

When were many decisions of law of contract decided?

A

19th century

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5
Q

What was the law of negligence in the law of tort developed and refined under?

A

judicial decisions

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6
Q

What case is an example where the law of negligence in the law of tort had been developed and refined through judicial decisions?

A

Donoghue v Stevenson 1932

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7
Q

What was established in Donoghue v Stevenson 1932?

A
  • manufacturer owed a duty of care to the ‘ultimate consumer’
  • ‘neighbour test’ was created
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8
Q

How has the tort of negligence been developed into a major tort?

A

the concept of the “neighbour test” has been applied by judges in several different situations

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9
Q

In what case did the HOL lay down guidelines for the area of case law on liability for nervous shock where there has been negligence?

A

Alcock v Chief Constable of South Yorkshire 1991

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10
Q

Who did Alcock v Chief Constable of South Yorkshire 1991 involve in claims?

A

claims made by people who had lost relatives in the Hillsborough tragedy

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11
Q

In criminal law, what area of law have the judges played a major role in developing ?

A

law on intention

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12
Q

Give an example of a judicial decision in the law on intention…

A

It is only because of judicial decisions that the intention for murder covers not only the intention to kill but also the intention to cause grievous bodily harm

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13
Q

In which 2 cases, are an example that judicial decisions have created new crimes?

A

Shaw v DPP 1962

R v R 1991

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14
Q

How in Shaw v DPP 1962 did a judicial decision create a new crime?

A

judicial decision created the offence of conspiracy to corrupt public morals

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15
Q

How in R v R 1991 did a judicial decision create a new crime?

A

it was decided that rape within a marriage could be a crime

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16
Q

What case shows a time when the HOL have refused to change the law saying that such a change should only be made by Parliament?

A

C v DPP 1995

17
Q

What happened in C v DPP 1995 where the HOL refused to change the law?

A

HOL refused to abolish the presumption that children between 10 and 14 were incapable of having the necessary intention to commit a crime

18
Q

In the case C v DPP 1995 what did Parliament later do?

A

later changed the law in the Crime and Disorder Act 1998 so that there no longer had to be evidence to prove that the child aged 10-14 knew what he /she was doing was seriously wrong