Common_Law_&_Its_System_of_Precedence

Judges are required to obey statute law: that is, law developed by parliament. when no relevant statute law exists a judge will turn to common-law principles to resolve a dispute. a judge may also use common-law to interpret statute law. if both common & statute law exists, then the statute law must always be followed. Equity: equity differs from common law on the grounds of while common law during the feudal system of England were based on monetary compensation, equity laws provided other remedies such as injunctions & specific performanceswhich kept more in line with the ideal of fairness. The main principles of equity are: to modify a remedy in common law that is deficient, or to create a new remedy -to develop remedies for wrongs that the common law does not recognise equity itself is now a part of common law by courts being instructed to take into account the principles of equity while using common law. therefore they are now part of the common law system. equity is discretionary, its remedies must be applied for promptly, the rights of equity are only to those who courts specify. Definitions: Injunction: a court order that requires a person not to do something Specific Performance: a court order that requires a person to fulfil an obligation they undertook as part of a contract Discretion: a person making a decision is not bound to follow a certain action Precedent: a judgement made by a court that establishes a point of law Ratio Decidendi: a statement by the judge about the reason for their decision. it creates a precedent that lower courts must follow Obiter Dicta: other statements made by judges, such as their personal opinions. these can be used in the future to justify a ruling Cross-Examination: where a lawyer for one party in a case asks questions of a witness call by the opposing party Mediation: where two parties in dispute meet to discuss their concerns through mutual negotiation The System of Precedent: The Doctrine of precedent: a precedent can be defined as a 'judgement made by a court that establishes a point of law'. the legal process of following precedent is known as stare decisis, literally "to stand by a decision'. The aim of the doctrine of precedent is to ensure that people will be treated equally & fairly in their dealings with the legal system. precedent gives everyone the assurance that certain rules & procedures exist that make it possible to predict, with some certainty, the likely outcome of a dispute. therefore the doctrine limits the powers of the judges to make new rulings when a decision about a similar case has already been made. in this sense the discretion of the judges, a key feature of equity, is limited. Making Precedent: there are two main types that precedent is developed: Precedent is created when a judge arrives at a decision in a case when there is no existing common or statute law. In these cases the judge must rely on common sense & the principles of law for guidance in making the decision. the cases in which the defences for specific crimes were first used then set a precedent that subsequent courts could follow in similar cases. Precedent can also be created by the way judges interpret legislation. While parliament is responsible for the creation of legislation, courts still need to interpret the law, or to determine the meaning of certain words. Binding Precedent: Persuasive Precedent: persuasive precedent may influence a decision, but a court is not bound to follow it. examples of this type of precedent include judicial statements made by a judge, or decisions made by courts in other jurisdictions. how persuasive a precedent is will depend on two main factors: -the judge. a court is more likely to take into account a precedent set by an eminent & & influential judge. -the court. the higher the court, the more persuasive the precedent will be. The operation of the doctrine of precedent in Australia. The Adversary System: one of the main characteristics of English law is its use of the adversary system. this means that in each case there are two opposing sides who argue their case before a court, which is presided over by a neutral third party. As long as they abide by the rules of evidence, each side has control over what evidence it introduces to the court & over the witness it may call to support its case. the opposing side then tests the evidence by asking questions of witnesses through cross-examination & by introducing other witnesses & evidence to counter the other side's evidence. at the conclusion of the case, the presider (judge or magistrate) or a jury will decide which version of events they believe; one side will win & the other will lose. neither the presider nor the jury has any role in testing the evidence; such as, a judge cannot cross-examine a witness.