Sources of Law

Question 1

Where does common law come from?

Answer 1

Britain, in the 11th Century from William the Conqueror.

Question 2

What are the main principles of equity?

Answer 2

• To modify a remedy in common law that is deficient or to create a new remedy.
• to develop remedies for wrongs that the common law does not recognise.

Question 3

What is a precedent?

Answer 3

A judgement made by a court that establishes a prior point of law. Following precedent is known as stare decisis.

Question 4

How is precedent developed?

Answer 4

1. When a judge arrives at a decision in a case where there is no existing common or statute law.
2. The way in which judges interpret legislation.

Question 5

When is a precedent binding?

Answer 5

Binding precedent is handed down from courts above. For example, a precedent set in the high court must be followed by all courts below.

Question 6

What is ratio decidendi?

Answer 6

A statement by the judge about the reasoning behind their decision. These statements then create precedent for lower courts to follow.

Question 7

What is obiter dicta?

Answer 7

Statements made by judges that reflect their personal opinions. These are not binding by law, but can be used to justify a later precedent.

Question 8

What are the key features of the adversary system?

Answer 8

• opposing sides
• each side introduce own evidence and witnesses
• the opposing side may cross examine to test validity of evidence
• the judge or jury does not test the validity of evidence

Question 9

What is common law?

Answer 9

Laws that are made by judges instead of parliaments.