Legal Concepts and Common Law

Law

A set of rules imposed on all members of a community that are officially recognised, binding, and enforceable.

Customs

Traditions and habits that have developed within a society over a long period of time.

Rules

Regulations or principles that govern behaviour or control conduct, which are not legally enforced.

Values

Principles or standards considered right or wrong within a society.

Ethics

Moral rules or principles that dictate what is right or wrong behaviour for a group of people.

Nature of justice

The concept of justice that addresses the principles of fairness, equality, and access

Equality

The state of being equal; having the same politcal, social and civil rights and opportunities, and are not discriminated against

Fairness

The quality of making judgments that are free from bias, dishonesty or injustice.

Access to justice

The ability of individuals to have access to legal information, legal representation, understand their rights and understanding the law

Procedural fairness

The concept that legal processes must be fair, that individuals have the right to a fair hearing and an unbiased decision being made

Rule of law

The principle that no one is above the law, including law makers; everyone is subject to the same laws

Anarchy

The absence of the laws and government, mostly leads to disorder and chaos

Tyranny

The absence of the rule of law because there are no limitations on lawmakers or enforcers; the unlimited power of a single leader or group.

Common law

• Law made in court

• Created by decisions of judges, which acts as precedent

• Inherited from England

Adversarial system of trial

A legal system structure where two opposing parties present their case before an impartial decision-maker

Inquisitorial system

A legal system structure where the judge is actively involved in conducting the investigation, questioning witnesses and being an impartial decision-maker

Justice

Fairness or moral rightness; ensuring all rights are upheld; fair treatment and outcomes for everyone

Equity

That all people in a society have the same political, social and civil rights and opportunities, and are not discriminated against (eg. due to gender, race, disability etc).

Precedent

A judgement made by a court that establishes a point of law

Stare decisis

‘the decision stands’; the doctrine that a decision must be followed by all lower classes

Ratio decidendi

The legal reason why a judge came to a particular decision; reason for deciding

Obiter dicta

Other remarks made by the judge about the conduct of the trial (e.g. about the credibility of a witness”; remarks don’t form part of the decision

Binding Precedent

Precedent created in higher courts that must be followed in lower courts

Persuasive Precedent

Precedent that can be considered and influential but doesn’t have to be followed

Jurisdiction

The official power to make legal decisions and judgements

How precedent is made

A court uses principles of both common and statute law to make decision, as well as interpreting legislation

When precedent doesn’t have to be followed

Precedent does not have to be followed if the facts or relevant points of law are significantly different from a previous case; if a higher court upholds an appeal against a lower court’s decision, reversing it

Legislation

Laws, considered collectively; The act of creating or enacting laws