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Lecture

LWSO 201 Lecture Notes - Common Law, Judicial Activism


Department
Law and Society
Course Code
LWSO 201
Professor
Marywyatt Sindlinger

Page:
of 2
Civil and Common Law Systems
1) Civil Law System:
a) Defined: a comprehensive compilation of rules covering all aspects of an area of
law
b) Applies in Quebec
2) Common law system: judicial decisions as the source and interpretation of the law
Case law or judge man law
second most common legal system
originated in England
a) Stare decisis/precedent: “to stand by decision and not disturb the undisturbed”
a rule established in a past decision on the same facts must be binding with
the same facts
b) Judges follow the rulings in similar cases
c) Benefits: continuity, certainty, rule of law, flexibility – linked to rule of law,
fairness and predictive value
d) Problems: entrenches bad decision and particular ideologies
e) Applies in UK, All provinces in Canada but Quebec (with some overlap)
3) Binding and/or persuasive – hierarchy of the courts and who a case is binding on and who it
is simply persuasive
4) Distinguishing cases
you are bound by the previous decisions of the courts if the case is similar.
you can go against a similar decision on a case by saying that it only
applies to that jurisdiction and not yours.
5) Readings:
a) Precedents, Statutes and Legal Reasoning (good discussion of precedent and
judicial activism)
b) The Doctrine of Precedent: precedent as a guiding rule and not an absolute
requirement
c) This Case System: Precedent