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Legal Studies Unit 3 - AOS 3 - Courts (Court Hierarchy (High Court,…
Legal Studies Unit 3 - AOS 3 - Courts
Common Law
Made by judges when deciding on cases before them
Can make laws through two ways
Development of precedents
Deciding a new issue that irises in a case before them were there is no previous decision/ruling
Statutory Interpretation
By interpreting the meaning of legislation relevant to the case before them in order to settle a dispute
Court Hierarchy
High Court
Supreme Court - Court of Appeal
Supreme Court - Trial Division
County Court
Magistrates Court
Precedent
The reported judgement of a court that sets a principle of law
Precedents are made when a judge in a superior courts makes a judgement on a point of law usually on appeal
The reasoning for a decision will form a principle of law referred to a a precedent
The legal reasoning is to be followed in all future situations brought before the courts that are similar
A judge is not bound to follow a decision of another judge at the same level
Precedent is followed in two ways
Binding Precedent
Judges are bound to follow a precedent if made by a judge in a superior court
Not everything a judge says must become binding
Persuasive Precedent
Judges are not bound to follow a precedent if made in an inferior/same level court
Latin Terms
Ratio Decidendi
Reason for the decision becomes a statement of law that must be followed by other courts when material facts are similar
Only ratio decidendi forms the legal principle to be applied and followed in future cases
Stare Decisis
Stand by what is decided
Obiter Dictum
A statement or opinion made by a judge within the judgement but is not bound to follow
Form of persuasive precedent
Doctrine of Precedent
The processes and rules used by courts to develop new legal principles and decide whether they should apply the legal principles established in a previous case to the cases before them
Operates on the principle of Stare Decisis
Allows for predictability and consistency
Restriction on Judges Ability to make law
Precedent is usually only made when resolving a novel/test case
Must wait for a case to arise with a legal issue that has not previously been considered by any court OR when tests the validity of an existing la which requires interpretation of an existing law
Position of the Court in the Hierarchy
Only superior courts in the hierarchy can create precedent
The more superior the court is the greater chance the judges will have to make/change law
Type of legal case and the mode of trial
Precedents are usually only established in cases on appeals or in civil cases
Trials cases are less likely (but not unable to) to be able to create a precedent or interpret a statue
Judges may be bound to precedent
A precedent may ave already be decided in an earlier case with similar facts in a superior court
Unless able to to overrule or distinguish the facts of the case
Personality of the judge
Some judges are conservative, who see their role to adjudicate matters only and not to engage in law making
Likely to leave the law-making to the parliament as they are the supreme law making authority
While others are are progressive, who see their role as both an adjudicator and a law maker
Judges avoiding and changing precedent
Reversing
One case on appeal
Decides the lower court decided wrongly
Can reverse or change the decision of the lower court
New decision becomes the new precedent bound on lower courts
Overruling
Two different cases
Judge a case higher or at same level of where previous precedent was made
May choose to set own precedent which overrule the previous precedent
Distinguishing
Judge made determine the facts of the current case are significantly different
In the future 2 precedents will co-exist for the different facts/circumstances
Disapproving
Disapproving in a court of same level
At same level can state in their judgement that they disapprove of the precedent and await a higher court to overrule it in future cases