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ADMS2610-Session1-Ch1 - ADMS2610 Session 1 Chapter 1(pg...

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ADMS2610 Session 1 Chapter 1 (pg. 8-23) Sources of Law Common Law – the law as found in the recorded judgments of the courts - Also referred to as case law - Not found in code but in the recorded judgments of the courts o these judgments were not always recorded o in 1290, Edward I started the Year Books o these books provided reports of cases but in early years, the decisions were not recorded - Reporting of cases in the form of law reports took place in sixteenth century - Common Law could be determined through the doctrine of Stare Decisis - Creates certainty and predictability (it must be clear in its meaning and predictable in its application) - A blend of predictable yet flexible principles that is capable of conforming to the changing needs in society o No two cases are the same o Differences in the facts or circumstances are sufficient to allow a judge to decide that a particular obsolete precedent should not apply to the case if it produces an unsatisfactory results - Adaptability of Common Law has enabled it to absorb, over a long period of time, many legal principals, customs and laws from other legal systems and sources o Law of England before the Norman Conquest of 1066 was local in both form and application Consisted of a mixture of early customs, few remnants of early Roman Law and the laws and customs brought by the Anglo- Saxon invaders Decisions were handed down by judges based upon local custom which was the only precedent available o Norman Conquest brought a central system for administration of justice along with the incorporation of the customs and laws from all parts of the country into the Common Law - Very slow to respond to changing societal needs o Follows a gradual, evolutionary pattern of change Stare Decisis – means “to let a decision stand” or “to stand by a previous decision” - A theory of precedent in Common Law - The doctrine means that a judge must apply the previous decision of a case similar to the one before the court if the facts of the two cases are the same, providing such a decision was: o (1) from the judge’s own court
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o (2) from a court of equal rank o (3) from a higher or superior court - Only the Supreme Court has the unrestricted ability to overrule previous decisions in cases of identical facts (does so only with caution) - Decisions of the Supreme Court of Canada are binding on all lesser courts o In cases of identical facts, all lesser courts are bound to follow the decisions taken by higher courts in their own jurisdiction - If a previous decision of a court on identical facts comes before the court a second time, unless there are compelling reasons, the expectations is that the earlier precedent will be followed - Decisions of higher courts or court of equal rank form other jurisdictions are persuasive but not binding Canon law (Church Law) – the law developed by the church courts to deal with matters that fell within their jurisdiction - The church originally had jurisdiction over religion, family and marriage,
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