LAWS 1000 Lecture Notes - Lecture 9: Publication Ban, Superior Court, Non Compos Mentis
3 Nov 2016
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Subsidiary sources include: general & specific customs, books of authority. Principal sources include: legislation- federal & provincial, precedent & stare decisis. Ratio dicendi (the rule of law on which a judicial decision is based. ) Obiter dicta (a judge"s incidental expression of opinion, not essential to the decision and not establishing precedent, an incidental remark. ) Morton: precedent & stare decisis - 2 aspects: provides continuity and certainty in law, ensures rule of law" not of men". Rule of law: the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws. Rule of men: rule of man is absence of rule of law. It is a society in which one person, or a group of persons, rules arbitrarily. The sovereign exercises absolute authority and is not bound by any law, he as a person stands outside law. Double doctrine can permit widly variant interpretations of a single precedent - impacts certainty in outcome, but not process.
