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Sources of law

Sources of law. Judicial Precedent. What you need to know. Stare decisis – stand by what has been decided Ratio decidendi- the rule of law on which a decision is based - e.g. (Cunningham) Obiter dicta- things said by the way – aeroplane scenario in ( Moloney)

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Sources of law

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  1. Sources of law Judicial Precedent

  2. What you need to know • Stare decisis – stand by what has been decided • Ratio decidendi- the rule of law on which a decision is based - e.g. (Cunningham) • Obiter dicta- things said by the way – aeroplane scenario in (Moloney) • Persuasive precedent - does not have to be followed e.g. decisions of lower or foreign courts ( Thabo Meli) • Binding precedent- has to be followed • Original precedent- law made as there was no precedent or statute to follow (Bland) • Distinguishing two cases as not quite the same so the first one does not have to be followed (Balfour v Balfour, Merritt v Merritt) • Overruling- a previous decision is ruled wrong so can no longer be used as precedent • Reversing-the result of a case changes as it goes through the appeals process.

  3. The Hierarchy of the Courts Courts are usually bound by the courts above them and those on the same level. • European Court of Justice • House of Lords • Court of Appeal • Divisional High Courts • Inferior Courts

  4. House of Lords The Practice Statement • London Street Tramways • 1966 Lord Gardiner • Limitations • When has it been used? • Herrington (1972) • Jones v Secretary of State for Social Services (1972) • Miliangos v George Frank (1976) • Pepper v Hart (1993)

  5. Criminal cases • Shivpuri (1986)overrulingAnderton v Ryan (1985) • R v R (1991) • Rv R & G (2003) overruling Caldwell • Lord Denning’s unsuccessful campaign to allow the Court of Appeal to use the Practice Statement. (Broome v Cassell , Miliangos v George Frank)

  6. Court of Appeal Young v Bristol Aeroplane Co (1944) • Court of Appeal • Usually follow own previous decisions • 3 exceptions – later HL decision, 2 conflicting decisions, per incuriam. (Williams v Fawcett) • Extra exception for criminal cases – “in the interests of justice” Taylor or Gould

  7. How has precedent been used to develop the law • Law reporting • Law of Contract (Carlill vThe Carbolic Smoke Ball Co) • Law of Tort– negligence, (Donoghue v Stevenson)nuisance, trespass • Criminal law – murder, involuntary manslaughter, many defences

  8. Advantages Certainty Consistency and fairness Precision Flexibility Timesaving Disadvantages Rigidity Complexity Illogical distinguishing Slowness of growth Advantages and disadvantages of Binding Precedent

  9. Possible reform • Codes of law – but they have their own problems • Less rigid precedent • Prospective overruling

  10. Common Mistakes • Not answering the questions • Confusing the hierarchy of the courts • Not using the source • Not looking at dates or which court is in application questions • Vagueness • Not using cases • Not knowing the material

  11. How to avoid these mistakes • Read the questions and • Answer the questions asked • Use the source • Use other cases or information • Balance your evaluation - make sure you put both sides of an argument • Revise thoroughly

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