PUBLIC LAW L4 - Sources of Law - CASE LAW Flashcards
How do judges develop the law? (1)
By applying established legal principles to new situations.
What is the ratio? (1)
The part of a judgement which establishes a principle, which can be applied to other cases.
What is ‘obiter dicta’? (2)
Things said by the way in a judgement, they may or may not be significant, depending on the facts of the case and the seniority of the tribunal.
When can a judgement/precedent be distinguished? (1)
If the material facts of the case at hand are different.
When can higher appeal courts depart from their own precedents? (1)
In order to prevent too much rigidity in the law, only in exceptional cases.
What is ‘stare decisis’? (3)
Binding precedent, means to stand by what has been decided. Once a principle of law has been set down future cases with the same material facts must be decided in the same way. It refers to the doctrine of precedent that governs the development and operation of the common law.
What happens when a ‘point of law’ has been decided? (1)
It establishes a precedent.
What two things can a precedent be? (2)
Binding - it must be followed. Persuasive - it will be considered by the later court and may be followed.
What does a judgement consist of? (3)
A summary of facts, statement of law including ratio decidendi and often obiter dicta and the court’s decision on remedies.
What does it mean if the decision is followed? (1)
When a court considers the facts of a case to be so similar to those facts in an earlier case that the law in the earlier case is followed.
What does it mean if the court is said to be approving the earlier court? (1)
If the court doing the following is a higher court the later decision is said to be approving the earlier one.
What does it mean if the court is said to be applying the earlier decision? (1)
If a court in a later case considers the facts of an earlier case to have similarities to those in the case before it and therefore applies the law in that earlier case.
What does it mean to distinguish the earlier case and when may this happen? (2)
A court may avoid following an otherwise binding precedent, by finding a difference in the material facts between the two cases.
When is a judgement reversed? (1)
If a case goes to appeal and a higher court disagrees with the lower court.
When is a precedent overruled/overturned? (1)
If a superior court in a later case decides the original precedent set in the past case is wrong and set a new correct precedent instead.
