JUDICIAL PROCESSES OF LAW MAKING

What is judicial precedent?

A source of law making where the past decisions of judges create law for future judges to follow.

What is judicial precedent based on?

The principle of standing by or following what judges have decided in previous cases.

How does judicial precedent work in the court hierarcy?

A decision taken in a case by a higher court automatically creates an original or binding precedent for all lower courts.

What are the exceptions to precedent?

There are two main situations, distinguishing and overruling

What is the distinguishing exception to precedent?

An earlier case is only binding on a present case if the legal principle involved is the same and if the facts are similar in both cases.

Means that if a judge finds the facts in a present case are different enough from an earlier one to allow them to reach a different decision and therefore not have to follow precedent.

What is the overruling exception to precedent?

When a court which is higher up the hierarchy states that a legal decision in an earlier case is wrong and overturns it.

What is statutory interpretation?

Judges can make law by the way that they interpret statutes and Acts of Parliament. A statute is a written law and judges need to interpret the meaning of its words and apply it to their own case.

What are the three types of statutory interpretation?

The literal rule

The golden rule

The mischief rule

What is the literal rule?

Judges must use the everyday, ordinary meaning of the words in a statue.

An issue with this however is that words can have different literal meanings.

What is the golden rule?

If the literal rule leads to an absurd result, then the golden rule allows the court to modify the literal meaning to avoid it.

What is the mischief rule?

The mischief rule allows the court to enforce what the statute was intended to achieve, rather than what the words actually say?