Yr 11 Legal Studies Unit 1 AOS 1b

Role of Courts

The role of the courts is to interpret legislation and create law through setting precedents.

Binding Precedent

The common law principle by which the decisions of courts higher in the hierarchy, are binding upon courts in the same hierarchy where the material facts are similar.

Persuasive Precedent

A precedent will be considered persuasive if the facts are similar, but the decision was made by another court hierarchy or by a court at the same level or below in the same hierarchy.

Ratio Decidendi

Reason for deciding. (Binding part of a precedent)

Obiter Dictum

statements made by the way.

Stare Decisis

Stand by the decision

Ejusdem Generis

Of the same kind

Ex Post Facto

After the act or omission took place

Reversing

when, on appeal, the Appellate Court disagrees with the point of law that decided the matter in the first place, and hence gives its decision in favour of a different party.

Overruling

when in a latter and separate case a higher court decides a similar matter on the basis of a different legal principle.

Disapproving

when in a latter case, without overruling an earlier case, the court gives its opinion (in the obiter dictum) that the earlier case was wrongly decided.

Distinguishing

when in a later and separate case the court draws some point of difference or distinction between the facts of the earlier case and the one before the court.

Strengths of Precedent

Creates certainty and consistency with comparable cases

Flexibility (RODD)

Efficiency - Judges can refer to previous cases when making a decision

Allows Judges to create laws as the need arises

Weaknesses of Precedent

Inflexible ( bound by previous decisions)

No two case are ever the same so hard to compare

Restricted by ex post facto

Statutory Interpretation

is the process by which courts determine the application of words, terms and phrases used in Acts of Parliament and delegated legislation.