Outline the origins of common law
Binding precedent
Lower courts are bound to follow the decision/ ratio Decidendi of superior courts whether the judge believes the decision made by the higher courts is correct
two parts of a judges decision in a case ( precedent)
- Ratio Decedendi - Obiter Dicta
Adversarial System of trial
- all common law countries - judge acts as an umpire; impartial body , prosecution and defence manage their own case and try to disprove the others case-manage own evidence and witnesses
Inquisitorial System of trial
- based on roman law -judge has control over witnesses/evidence -judge investigates claims/ conduct inquiry to determine the truth
Common Law
- court made law - law developed by the courts of common law , distinct from the court of equity - system of court based law used in the uk and it former colonies
Equity
- courts of equity developed when common law became rigid and sometimes unfair , people petitioned for the chancellor for ' equitable remedy ' , only when the common law would fail to be just \. - 1871, common law and Laws of equity merged, gave the judges the right to pick and apply principles for both
Precedence
- judgement that is followed based on the legal principals of decisions made in past cases and influenced by common law - allows older cases to maintain authority and their decisions can be used as a basis for decisions in a modern case
Development of common law
-developed in england after disputes arose from various decisions made by a number of courts considered un just - norman invasion, a system of 12 travelling judges to investigate and apply a set of common laws, similar cases should be dealt with in similar ways - consistent and fair
Precedence
Can be made when; - no current precedent or law exists for the dispute, judges will then make a decision based on common/statute laws and common sense becomes new precedent - in the interpretation of legislation , dispute about the meaning of the legislation , resolving the dispute becomes precedent
Precedents don't have to be followed
If; - the facts are signifacntly different, distinguished -when a lower court upholds an appeal of a lower courts decisions reversed - when the court refuses to allow a decision of a lower court or equal court over ruling
Obiter Dicta
other remarks made by a judge to persuade / guide other judges if a similar case but under different circumstances
Ratio Decedendi
the reason the judge came to that decision based off legal principals/ reasons
Persuasive precedent
when a higher court may be influenced by a decisions made in a lower court or in a court of another nation- state can also be influenced by an obiter dicta of any court.
