Sources of law

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

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

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 Advantages and disadvantages

of Binding Precedent Advantages Certainty Consistency and fairness Precision Flexibility Timesaving Disadvantages Rigidity Complexity

Illogical distinguishing Slowness of growth Possible reform Codes of law but they have their own problems Less rigid precedent Prospective overruling 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 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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