the people & law-makers booklet 2 U4 (2nd term) Flashcards
lesson one
define statutory interpretation
- the process whereby courts / judges apply meaning to key words w/n acts or leg made my parl to det the outcome of a case before them
- int of wording = x change the words themselves but rth boundaries of the def
lesson one
what are the main reasons for statutory interpretation?
- the spec. meaning of words
- the changing ntr of words
- unforseen circum
lesson one
what are unforseen circumstances
- at the time of passing the legislation, parliament did x forsee a part issue arising or, the wording was unclear
lesson one
what are the impacts of statutory interpretations?
- the int narrowed the def of the word
- the int broadened th int of the word
- theint created a prec
- the int influ parl to amend leg
lesson one
statutory interpretation is effective
- SI all chgs to the law in an eff & indep manner b/c x have to face pol press such as MPs iver controv areas nor do they have to be ‘sitting’ or ‘deb’ bills to chg the law
- jud are leg exp in the law t/f when applying meaning to words this is done so w/ exper in & jud can rely on res such as leg dict / ftnts from acts / oth prec outs their juris
- cl = app dep on where court in hier dec made –> jdgme = error = opp to crrt dec aft been rev by jud = higher exper
lesson one
statutory interpretation is not effective
- jud = x freey chg law thr SI = must wait for case bef courts bef stat = int & only rele stat = int
- jud must rel on indiv w/ st to brg case bef courts to prov SI = initi case = $ + time cons = lim / prev case forw
- jud x demo elec & come from a narr socio-eco grp t/f int of stat = may x refl soc whereas MPs = more rep of ppl
- cl = rev / overr by higher cts or abrog by parl t/f abil jud to initi chg meaning of words = x longst
lesson two
define common law
- an area of law that is created based upon decs of judges rth than acts of parl
lesson two
what must a decision be for it to be a common law?
- made by judge
- arising from a case in court
- creates a prec (does x need to be binding)
- can inv applying meaing to words in an act
lesson two
define precedent
- a leg princ that incorp the reasoning behind a jusge’s dec when making a judgement
lesson two
when a case arises what principle should a jusge apply?
stare decisis
lesson two
define stare decisis
- to stand by what haas been previously decided –> ens consis among dec (prov there is an exist prec)
lesson two
if a judge chooses to create a new legal principle in the case what are the two parts the judgment consist of?
- ratio decidendi
- obiter dictum
lesson two
define ratio decidendi
- reason for the dec
- these are the elements of a new prec being created
lesson two
define obiter dictum
- statements made by the way
- comm made w/n the judgement that provides ctx for the judge’s dec
- it is x binding & does x form part of the prec
lesson two
define material facts
- the key facts or details that exists w/n the previous case that are critical to the currents judge’s decision
- facts need x be identical
lesson two
what is the operation of a precedent rely upon?
- relies on the judges considering mat facts of previous cases & the one before them
lesson two
what are some reasons for a precedent?
- guidance for judges to be able to look back at previous cases to gain undst / idea of leg rat to det their case
- consist thr alwing leg rep to prov adv for their client onthe outcome of their case thr ref to past dec
- x wasting court’s res due to having to presi over the same mtt time & time again
lesson two
when a dispute arises, the current judge needs to determine whether what?
- there is x precedent to follow since there is a test case
- they are bound by exisiting precedent
- they are only persuaded by exisiting precedent
lesson two
what is a binding precedent?
- an existing precedent that was made by a sup (higher court)
- in the same court hierarchy
- that share sim mat facts w/ the current case
lesson two
what is a persuasive precedent?
- originates from a lower court (in the same court hierarchy)
- originates from a same level court
- originates from a court outside of the court hierarchy
- comment from a jusgement that are obiter dictum
lesson three
what are the four ways in which precedent can be applied?
- reversing
- overruling
- disapproving
- distinguishing
lesson three
when does reversing on appeal occur?
- occurs when a decision is appealed to a higher court & the higher court overturns the o.g. precedent
lesson three
when does overruling occur?
- occurs when a sup. court overrides a previ prec est at trial (two sep cases)
lesson three
when does disapproving occur?
- occurs when a court disagree w/ a prece est at the same lvl & chooses x to follow it & creates another prece
OR - when lwr court who is bound to follow a prece expresses their disagree but needs to fllw the prece anyway
lesson three
when does distinguishing occur?
- occurs when a judge is bound to fllw a prece but argues that sim mat facts does x exist & t/f it would be unfair to apply the same prece
lesson three
what are the strengths of the factors that impact the ability of precedent to make laws?
- if x exisiting prece / act exists judges can create prece to reso a disp & thereby dev new leg princ to cover a gap in the law
- judges = bound fllw prece have option of dist their case argu that diff mat fcts & t/f x have to apply the existing prece = prom jud fairness
- obiter comm –> judges = bound fllw existing prece or those that do x want to create laws can express their disapp = alert parl to amend that act (trigwell)
- due to hierarchy sup courts = rev / overrule a prece which ens that c.l rem up to date & t/f subse cases = x bound by outdated prece
- due to exisiting in ch prece that origi from higher courts are est based upon leg expert & prof knowledge of a sup judge w/ spec knowledge in the area & t/f more likely = jud just
- judges on the same lvl = x bound to fllw each oths prece = applies to HC = ens that the abil for courts to review decmade in error continues to occur
lesson three
what are the limitations on the ability of precedent to make laws?
- for prec to op case must brought bf the courts. jusges = autono to amend/int exisiting law unless a rele mtt is brought bef the courts for prec to op indiv w/ standing bring case to matt bef courts = limit opport
- judges only make laws on ex post facto meaning they can only make laws in retrospec = gen after wrong has occ
