Legal System 4 - Sources of Law 3 Flashcards
What are the two main sources of law?
(i) Legislation
(ii) Case law
What is precedent?
It is a previous judicial decision that:
(a) established
(b) developed
(c) modified
OR
(d) clarified
a legal principle or statement of the law
When a case law sets a precedent, it is reported in…
a law report
What is the ratio decidendi?
It is the reason for the decision
What is an obiter dictum?
= “other thing said”
statements other than the ratio decidendi
Does an obiter dictum form part of the decision?
No, it supplements the decision
Which part of a judgement forms a binding legal precedent?
Only the ratio decidendi
What does stare decisis mean?
= “stand by previous decisions”
Previous decisions are followed by courts in subsequent cases with similar facts and legal issues
What is a binding legal precedent?
It is a legal precedent that must be followed
What is the impact of a persuasive precedent?
Courts may - but don’t have to - rely on it in reaching a decision
Are courts bound by their own previous decisions?
Some courts are, but not all
Do all courts create precedents?
No, only:
- the Supreme Court
- the Court of Appeal
- the High Court
Is the Supreme Court bound by its own decisions?
Generally yes, but it may depart when it appears right to do so
When may the Supreme Court depart from its own decisions?
It may depart when it appears right to do so
When is the Court of Appeal (Civil Division) not bound by its own decisions?
Where one of the exceptions in Young v Bristol Aeroplane Co Ltd apply:
- two conflicting previous CA decisions
- previous CA decision overruled by Supreme Court
- previous decision made per incuriam
When is the Court of Appeal (Criminal Division) not bound by its own decisions?
Where one of the exceptions in Young v Bristol Aeroplane Co Ltd apply
AND
where the liberty of an individual is at stake
Young v Bristol Aeroplane:
- two conflicting previous CA decisions
- previous CA decision overruled by Supreme Court
- previous decision made per incuriam
When is a decision made per incuriam?
The court failed, through lack of care, to apply a relevant statutory provision or binding precedent when making a decision.
Who is bound by Judicial Committee of the Privy Council (JCPC)?
No one - its decisions are persuasive, but not binding
Is the High Court bound by its own decisions?
Yes, when acting as the court of first instance, it is bound by its own decisions unless the principles in Bristol v Aeroplane apply.
No, when exercising its supervisory jurisdiction, it may depart from its own previous decisions (power rarely exercised)
Are decisions by the European Court of Human Rights binding?
No, but they are highly persuasaive
Are decisions by the CJEU binding?
No
What does “reverse” in the context of the doctrine of judicial precedent mean?
The appelate court determines that the lower court’s decision was wrong
Are “reverse” and “overrule” the same?
No.
Reverse: The appelate court determines that the lower court’s decision was wrong
Overrule: The appelate court ceclares that an existing precdent is wrong or no longer an accurate representation of the law
What does “overrule” refer to in the conext of the doctring of judicial precedent?
The appelate court ceclares that an existing precdent is wrong or no longer an accurate representation of the law
Can a lower court overrule a higher court?
No
What does “distinguish” in the context of the doctrine of judicial precedent mean?
A court does not deem itself to be bound by an existing binding precedent because of material differences between the cases.
