CASE LAW Terms - Summary Legal System: Legal Method and Institutions PDF

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Summary

For final LAWS101 exam...

Description

Legal Terms + Legal Reasoning Cur adv vult -

Stands for curia advisari vult- translated to “The court wishes to be advised”

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Indicates reserved decision- judge needs time to think

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The fact that the judge reserved his/her decision indicates that as an authority it may carry more weight than one made at close of hearing.

Obiter dictum -

Translation: “by the way”

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Obiter dictum- a statement of a principle of law that is not strictly necessary to the decision (ratio decidendi)

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Careful to not mix this with the ratio- ask yourself whether the statement in question forms part of the ratio.

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Obiter is often hypothetical/ immaterial facts- and facts are not proven

Structure for exam: -

Explain what obiter is

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Identify an example of obiter in the judgement

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Either quote from judgment or paraphrase it. Refer to line/page/paragraph

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Explain why you say it’s an example of obiter

Legal Reasoning -

Test/exam questions about reasoning

• You could be asked: – what form of reasoning a judge is employing at a particular part of a judgment – to find an example of a particular form of reasoning in a judgment • In your answer, you should: – explain/define the form of reasoning – explain why the passage is an example of that form of reasoning

Analogical Reasoning

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Apply from the particular to the particular to reach a conclusion (basis of stare decisis- treat like cases alike)

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Occurs both when following precedents and when distinguishing them: identify similarities and/or differences between facts and/or law

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Can be used to apply a narrowly-framed ratio to a new set of facts

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Only ever persuasive (not certain)

Example: Hannah v Peel

“The defendant here had no knowledge of the existence of the brooch, as the shopkeeper in Bridges v Hawkesworth had no knowledge of the existence of the parcel of banknotes”.- last paragraph.

Bridges

P1: In Armory v Delamirie it was held that the finder had the right to keep the lost item P2: Stare decisis requires like cases to be treated alike P3: Bridges v Hawkesworth is materially similar to Armory v Delamirie C: Therefore in Bridges v Hawkesworth it should be held that the finder has the right to keep the lost item

Deductive reasoning -

Deduce from the general to the particular

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Major premise; minor premise; conclusion

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Deduction can be used – to apply a general rule to specific facts to reach a conclusion – to apply a widely-framed ratio to new facts – when law and facts are certain (when facts aren't certain, used inductive)

Example: Armory v Delamirie

P1 (major): The finder of lost item has right to item against all the world except true owner [law] P2 (minor): Armory found a lost item [fact] C: Armory has a right to the lost item against all the world except the true owner

South Staffordshire

P1: An occupier of land acquires rights to lost items found in the land [law] P2: The Minster Pool was occupied by South Staffordshire Water Co Ltd [fact] P3: Two gold rings were found in the land under the Minster Pool [fact] • P4: The two gold rings were lost [fact] C: Therefore South Staffordshire Water Co Ltd acquired rights to the two gold rings

Inductive reasoning -

Draws inferences from premises to draw a conclusion that is probably true but not certain

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Used when the law is uncertain: for the development of new legal rules or principles

Tamworth v Attorney General (factual findings: inductive)

P1: T did not manage the site on “any footing which restricted access to it” [fact] P2: No evidence in relation to control of lost items [fact] P3: On spectrum between private home (high control) and public park (no control), at lower end [fact] C: Therefore, on the balance of probabilities, T did not manifest intention to control the premises and the things in it Hannah v Peel

“It is fairly clear from the authorities that a man possesses everything which is attached to or under his land. Secondly, it would appear to be the law from the authorities … that a man does not necessarily possess a thing which is lying unattached on the surface of his land” (p520)....