legal foundations Flashcards
chapter 3
Social cohesion
A term used to describe the willingness of members of a society to cooperate with each other.
Fairness
A principle of justice which means all people can participate in the justice system, and its processes should be impartial and open.
Equality
A principle of justice which means all people engaging with the justice system and its processes should be treated in the same way; if the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow everyone to engage with the justice system without disparity or disadvantage.
Access
A principle of justice which means that all people should be able to engage with the justice system and its processes on an informed basis; that is, they should have the means and ability to be able to use and participate in the legal system.
List the characteristics of an effective law
Reflect society’s values, be enforceable, be known, be stable, be clear and understood
Parliament
Refers to all members
Government
Refers to the elected political party
Statute law
A law or act passed by government
Royal Assent
A bill must be signed by the Monarch’s representative in order for it to become law. This process is called giving royal assent
Common law
Common law is developed by judges on a case by case basis
Statatory Interpretation
Setting a precedent
When courts decide on an issue that does not have legislation or expand on previous legislation.
Ratio decidendi
The court’s reasoning for its decision.
Stare decisis
Let the decision stand; decisions are based on precedents from previous cases
Binding precedent
Binding precedents must be followed by courts that are lower in the same court hierarchy
A precedent is considered to be binding on a new case when:
- the material facts of the precedent are similar to the material facts of the new case
- the precedent was set in a higher court in the same hierarchy as the court hearing the new case
Persuasive precedent
Persuasive precedents do not have to be followed; courts can choose to follow them.
A precedent is persuasive when:
- a court in another state or country set the precedent (as this court is not in the same court hierarchy)
- a lower court set the precedent
the same court set the precedent.
What is RODD?
RODD is an acronym explaining the conditions where a judge can develop or avoid earlier precedents
What does RODD stand for?
R - Reversing
A precedent can be reversed when the same case is taken to a higher court on appeal.
O - Overruling
A precedent can be overruled by a higher court in a different case.
D - Disapproving
In some instances, a court is bound by a precedent but expresses disagreement with the precedent. The court encouraged Parliament is change the precedent.
D - Distinguishing
If the material facts of a case are sufficiently different from the material facts in a binding precedent, a lower court may not have to follow the precedent.
Codification of common law
When parliament passes an Act of Parliament that reinforces a principle established by a court
Abrogation of common law
When parliament passes an Act of Parliament that overrides a principle established by a court
Ability of courts to influence parliament
Courts can influence changes in the court through the comments made by judges
Social cohesion allows for…
- Social justice
- A sense of belonging
- Acceptance
- Political participation
- A sense of worth
Describe the role of laws in social cohesion
Laws provided guidelines of acceptable and unacceptable behaviour. They apply to everyone.
Describe the role of individuals in social cohesion
It is the responsibility and expectation that individuals are aware of laws, follow laws, respect human rights and assist in legal processes.
Describe the role of the legal system in social cohesion
The legal system deals fairly with individuals, applying punishments to maintain social cohesion. They update laws to stay relevant in a changing society.
Features of fairness
Impartial processes, open processes, and participation
Examples of equality
Extra assistance is given to disadvantaged (Disabled, non English speaking, etc) individuals
Examples of access
Information about legal processes is accessible in multiple different languages
Describe the court hierarchy
(In order of highest to lowest)
High Court, Supreme Court (Appeal), Supreme Court (Trial), County Court, Magistrates Court
Why is there a court hierarchy?
- Specialised in particular area
- Can appeal to higher court
- Efficiency
- Doctrine of precedent
Role of the courts
Primary role - To resolve disputes
Secondary role - To make common law
