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Heading 39: 5 factors that affect the ability of the courts to make law
Terms in this set (9)
the doctrine of precedent
The common-law principle by which the decisions of higher courts in a hierarchy are binding on lower courts in the same hierarchy where the material facts are similar.
Advantages of precedent
- stare decisis creates consistency as cases are decided similar to previous cases.
- flexibility (R.O.D.D.) to prevent rigid law
- by using statutory interpretation judges can clarify unclear legislation
Disadvantages of precedent
- can be difficult to locate precedent relevant to a case
- difficult to find the ratio decidendi
- judges must wait for test cases to be brought before them
ex post facto law
'after the aftermath'. Meaning that judges only establish law after an event has occurred and a case is brought before them.
Judicial Conservatives exercise restraint in changing controversial areas of law. They believe judges should not interpret the according to their own belief or opinions.
when judges are more receptive to taking social and political factors on board when interpreting the law.
how does judicial activism affect the court's ability to make law
- allows for judges to interpret statutes in order to recognise the rights of people
- fairer judgements may be made if the current political and social views of the community area taken on board
The requirement of standing
Means that parties in a case must have a concrete injury or interest at stake
'standing in a case'. A litigant must be directly impacted by
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