How Judges Make and Interpret Law

really important flash cars, also contains info about precedent.

What is case law?

made by judges in the process of resolving disputes.

What is Judicial Pronouncement?

The creation of law where no statutory law exists, also known as common law.

What are the primary roles of courts in law-making?

interpreting legislation; they also fill gaps and develop common law where no law exists.

What is the role of the Judges?

The judge is the determiner of fact.

What is the standard of proof in civil cases?

The standard of proof is the balance of probabilities.

What is the standard of proof in criminal cases?

The standard of proof is beyond reasonable doubt.

What is Ultra Vires?

Beyond the powers.

What is Intra Vires?

Within the powers.

What is ratio decidendi?

The reasons for deciding a case

What is obiter dictum?

judicial observations that support the ratio decidendi but are not binding precedents.

What is the effect of High Court decisions in Australia?

High Court decisions are binding in all courts in Australia, establishing settled law, although the High Court is not bound by its own precedents.

What is the literal rule of statutory interpretation?

Judges giving words their ordinary, everyday meaning as a starting point, assuming Parliament intended the law as written.

What is the golden rule of statutory interpretation?

A variation of the literal approach designed to avoid absurd or contradictory results from a literal reading of statutory words.

What is the purposive rule of statutory interpretation?

Considers parliament’s intention by identifying the ‘mischief’ parliament wanted to address and applying that meaning,

What is internal guidance in statutory interpretation?

Definitions for particular words within an Act, which may be listed at the beginning or in specific sections.

What is reversal in the context of precedent?

Occurs when an appellate court changes a precednet created in a lower court because it was considered inappropriately or wrongly decided.

What is the method of disapproving precedent?

Occurs when a court of equal standing chooses not to follow a precedent they disagree with or believe would lead to an unjust outcome.

What is distinguishing in the context of precedent?

Occurs when a lower court avoids following a superior court’s binding precedent by finding significant material differences in the facts of the current case.

What is a precedent?

A precedent is a legal principle established in a previous court case that guides of binds future decisions.

Can judges avoid precedents?

Yes, judges can avoid precents through distinguishing, reversing or overruling, depending on the courts positions in the hierarchy and the nature of the precent.

What are the advantages of case law?

Advantages include resolving disputes, ensuring justice and fairness, providing certainty and predictability, offering flexibility, and filling legal gaps.

What are the disadvantages of case law?

disadvantages include, complexity, difficulty in finding the ratio, slowness of change, retrospective effect, and being made by unelected judges.

What is judical review?

Ensures the judiciary does not exceed its powers and protects the people’s rights against the state, but only tests the legality of the decision, not its merits.