FOL - Lecture 4

.docx
This is a preview
Want to read all 13 pages? Go Premium today.
View Full Document
Already Premium? Sign in here
Week 4, Class 1 Introduction to reading cases: Percedent, ratio and obiter Readings: Michelle Sanson and Thalia Anthony, Connecting with Law (Oxford University Press, 5 th ed, 2019), 442-452 (Ch 10, first 11 pages) . Note that this reading contains a case extract ( Kakavas v Crown Melbourne Ltd [2013] HCA 25) that we will use as an exercise in class. Creyke et al, Laying Down the Law (LexisNexis Butterworths 10 th ed, 2018) 135-139, 151-162 . Prue Vines, Law and Justice in Australia: Foundations of the Legal System (Oxford University Press, 3 rd ed, 2013) 333-334. Cohen v Sellar [1926] 1 KB 536. This case will be used in an exercise in class. Questions: 1. What is the doctrine of precedent? The doctrine of precedent is a fundamental principle of common law legal systems, including those in the United Kingdom, United States, and other countries. It is also known as stare decisis, which means "to stand by things decided." Under this doctrine, a court is bound to follow the decisions made in previous cases, particularly those made by higher courts within the same jurisdiction. The reasoning and legal principles established in earlier cases are considered binding on later cases with similar facts or legal issues. In other words, courts are required to follow the legal precedents established by higher courts in similar cases. This helps to promote consistency and predictability in the legal system and ensures that like cases are treated alike. However, the doctrine of precedent also allows for the development and evolution of the law over time, as courts may distinguish or overrule previous decisions if they are no longer considered sound or applicable to the current circumstances. 2. When is a precedent binding on a court? A precedent is binding on a court when the following conditions are met: The precedent was established by a higher court within the same jurisdiction: A court is generally bound to follow the decisions made by higher courts in the same jurisdiction. For example, a lower court in the United States must follow the decisions made by the U.S. Supreme Court, which is the highest court in the country.
The precedent is relevant to the current case: The precedent must be directly applicable to the current case before the court. This means that the facts and legal issues in the current case must be sufficiently similar to those in the precedent for it to be binding. The precedent has not been overruled or distinguished: If a higher court has overruled or distinguished the precedent, then it is no longer binding on the court. Overruling means that the higher court has explicitly stated that the precedent is no longer valid, while distinguishing means that the higher court has found significant differences between the precedent and the current case. The precedent is not outdated or inconsistent with later decisions: If a precedent is outdated or inconsistent with later decisions, then a court may choose not to follow it. However, this decision must be based on careful consideration of the reasons for departing from the precedent and the potential consequences of doing so. 3. What do you see as the advantages and disadvantages of a system based on precedent? Advantages of a system based on precedent: 1. Promotes consistency and predictability: The doctrine of precedent ensures that similar cases are decided in a consistent and predictable manner, which is important for maintaining public confidence in the legal system. 2. Saves time and resources: By following established precedents, courts can save time and resources that would otherwise be spent on re-litigating the same legal issues in each new case. 3. Encourages incremental change: The doctrine of precedent allows for the gradual development and evolution of the law over time, as courts distinguish or refine previous decisions rather than completely overturning them. This approach can help to ensure that legal change is gradual and thoughtful, rather than sudden and disruptive. Disadvantages of a system based on precedent: 1. Can perpetuate legal errors: If a precedent is based on flawed reasoning or outdated legal principles, then following it can perpetuate legal errors and injustices. 2. Limits judicial discretion: The doctrine of precedent can limit a court's ability to exercise its discretion and apply the law to the unique facts of each case. 3. Can lead to inflexibility: In some cases, following precedent may lead to inflexibility and an inability to adapt to changing social or technological realities. 4. May perpetuate bias and discrimination: If a precedent reflects historical biases or discrimination, then following it may perpetuate those biases and make it more difficult to achieve justice for marginalized or disadvantaged groups. In summary, a system based on precedent has both advantages and disadvantages, and it is up to the legal system and individual judges to strike a balance between the need for consistency and predictability and the need for flexibility and adaptation to changing circumstances.
4. Why is it difficult to identify the ratio of a case? In what sense is this process an interpretative act? Identifying the ratio of a case can be difficult because it requires interpreting the reasoning and legal principles that underlie the court's decision. The ratio decidendi (or simply, the ratio) refers to the legal principle or rule of law that the court relied upon in making its decision. There are a few reasons why identifying the ratio of a case can be challenging: Multiple reasons given: Sometimes a court will provide multiple reasons for its decision, and it may not be clear which of these reasons is the ratio. Different opinions: In cases with multiple judges, there may be different opinions on what the ratio is, and these opinions may not always be explicitly stated in the judgment. Conflicting or ambiguous language: The language used by judges in their judgments can sometimes be ambiguous or conflict with other parts of the judgment, making it difficult to determine the true ratio. Identifying the ratio of a case is an interpretative act because it involves interpreting the reasoning and legal principles underlying the court's decision. The judge's reasons for the decision may not always be explicitly stated, and there may be room for interpretation or disagreement about what the ratio is. Different judges may also interpret the same case differently, based on their own understanding of the law and legal principles. This interpretative act is necessary because the ratio of a case is the legal principle or rule of law that is binding on future cases, and it is important for legal certainty and predictability. Exercises on identifying ratio and obiter 1. We will use Cohen v Sellar [1926] 1 KB 536 in an exercise to identify ratio and obiter. 2. We will also use the case Kakavas v Crown Melbourne Limited [2013] HCA 25 (extracted in your textbook) in an exercise to identify ratio and obiter. In doing this work you will also be asked to identify the: o citation of the case brief statement of the material facts the legal issue(s) (or question) that the court had to answer
Why is this page out of focus?
Because this is a Premium document. Subscribe to unlock this document and more.
Page1of 13
Uploaded by GrandProtonHedgehog32 on coursehero.com