Understanding New Law Terms
TUTORIAL WEEK 3
TOPIC: APPLYING THE LAW
LEARNING OBJECTIVE:
1. To understand how laws and the legal system are used to solve legal problems A. COMMON LAW AND THE DOCTRINE OF PRECEDENT 1. The three meanings of the term common law 2. The concept of equity. 3. The doctrine of precedent; the concept of stare decisis a. binding precedent b. persuasive precedent c. ratio decidendi d. obiter dictum 4. The rules of precedent 5. What is necessary to make precedent work? e. law reports f. a hierarchy of courts 6. Things to look for when studying a case g. the material facts h. the legal issue i. the ratio decidendi j. the actual decision 7. The process of legal reasoning k. distinguishing l. overruling m. disapproving n. following o. per incuriam ------------------------------------------------- Reading: Chapter 2, pages 90 to 94; Chapter 3, pages 106 to 117 B. STATUTORY INTERPRETATION 1. Why do statutes have to be interpreted? (the problem with words) 2. General approaches to the interpretation of statutes. a. The “literal approach”. i. ‘The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.’ Higgins J. in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 161-2. (See text page 119) ii. Examples: Fisher v Bell (1961) 1QB 394 (page 118) b. The “golden rule” approach. iii. ‘…the grammatical and ordinary sense of the words is to be adhered to,
TOPIC: APPLYING THE LAW
LEARNING OBJECTIVE:
1. To understand how laws and the legal system are used to solve legal problems A. COMMON LAW AND THE DOCTRINE OF PRECEDENT 1. The three meanings of the term common law 2. The concept of equity. 3. The doctrine of precedent; the concept of stare decisis a. binding precedent b. persuasive precedent c. ratio decidendi d. obiter dictum 4. The rules of precedent 5. What is necessary to make precedent work? e. law reports f. a hierarchy of courts 6. Things to look for when studying a case g. the material facts h. the legal issue i. the ratio decidendi j. the actual decision 7. The process of legal reasoning k. distinguishing l. overruling m. disapproving n. following o. per incuriam ------------------------------------------------- Reading: Chapter 2, pages 90 to 94; Chapter 3, pages 106 to 117 B. STATUTORY INTERPRETATION 1. Why do statutes have to be interpreted? (the problem with words) 2. General approaches to the interpretation of statutes. a. The “literal approach”. i. ‘The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.’ Higgins J. in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 161-2. (See text page 119) ii. Examples: Fisher v Bell (1961) 1QB 394 (page 118) b. The “golden rule” approach. iii. ‘…the grammatical and ordinary sense of the words is to be adhered to,