Law making Flashcards
What is meant by stare decisis?
To stand by previous decisions.
What is meant by original precedent?
A decision in a case where there is no previous legal decision or law for the judge to use.
What is meant by binding precedent?
A previous decision that has to be followed
What is meant by obiter dicta?
‘things said by the way’ This is not binding and only persuasive
‘a judge’s expression of opinion uttered in court or in a written judgement, but not essential to the decision and therefore not legally binding as a precedent’
What is meant by the court hierarchy?
This establishes which decisions are binding on which courts. Decisions of higher courts are binding on lower courts.
What is the order of the court hierarchy?
1: Supreme Court
2: Court of Appeal
3: High Court
4: Crown Court
5:Magistrates’ and county courts
6: European Court of Human Rights
What is meant by ‘ratio decidendi’?
‘the reason for the decision’. This is the binding element of precedent, which must be followed.
What four elements does the judgement contain?
Statement of relevant facts
Statement of legal principles
Discussion of legal principles raised in argument but not relevant to the decision ( obiter dicta)
The decision or verdict
What 4 ways is law reform carried out?
Repeal
Creation of law
Consolidation
Codification e.g. Police and Criminal Evidence Act 1984
How was the Police and Criminal Evidence Act 1984 codified?
The law was updated to regulate the police powers to combat crimes and protect public rights.
What is the Law Commissions Act 1965?
The Law Commission’s task is to:
Codify the law
Remove anomalies in the law
Repeal obsolete and unnecessary legislation
Consolidate the law
Simplify and modernise the law
What are the problems with law reform agencies?
Very little power
No obligation on Governments to follow recommendations and proposals may be drastically altered
Little influence over how proposals are put into practice
Agencies tend to compromise too much
Waste of expertise- once disbanded they play no further role in the law-making process
No single Government ministry for law reform.
What is meant by precedent?
An earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances
What is judicial precedent?
Past decision of judges which are followed by future judges and arising from the hierarchy of the courts.
Whare the 4 ways to avoid ‘awkward’ precedent?
Follow
Overrule
Reverse
Distinguish
What are the advantages of judicial precedent?
A just system: like cases will be treated the same
Impartial system: treating like cases in similar ways promotes impartiality
Certainty
Flexibility: case law can change quickly to meet changes in society
What are the disadvantages of judicial precedent?
Undemocratic: judges are not elected and should therefore not be changing or creating laws, unlike Parliament that has been elected to do so.
Retrospective effect: unlike legislation, case law applies to events which took place before the case came to court.
e.g. SW v UK 1996
(criminally liable for rape within marriage)
What is the retrospective effect?
laws that operate on matters taking place before their enactment, i.e they change what was legal or illegal yesterday
What is R v R?
A husband broke into the house where his estranged wife was staying with her mother and forced her to have non-consensual sexual intercourse with his wife can be guilty of rape on the basis that the status of women, and particularly of married women, has changed out of all recognition in various ways. As a result, the Sexual Offences Act 2003 was amended to reflect the fact that non-consensual intercourse is rape regardless of marital state.
What is meant by repeal?
Old and obsolete laws are removed
Out of date laws will often stay on the statute books for a long time before they are repealed
