LAWS101 @ Carrington
Tutorial 5
Legal History
Key Readings:
Stephen Smith: Chapter 6 – The Magna Carta
Study Questions
1. It is often said that the value of Magna Carta is more than the sum of
its parts. What does this mean?
2. Why were the Pope and King John in conflict? Why did King John
eventually capitulate to the King’s demands?
3. In summary, why did King John agree to grant Magna Carta?
4. What is the significance of Magna Carta’s prohibition on constables
holding ‘pleas of the Crown’?
5. True or False? Magna Carta confirmed the common law rule that a
convicted felon’s land is permanently escheated to the Crown.
6. Why was it it agreed in Magna Carta that ‘no one shall be taken or
imprisoned on the appeal of a woman except for the death of her
husband’?
7. Why are debts owed to Jews singled out for mention in Magna Carta?
1
LAWS101 @ Carrington
8. If it is true that Magna Carta was more a confirmation of pre-existing
rights than a grant of newly-conceived rights, why is Magna Carta
nonetheless considered to be one of the most important political
documents of all time?
9. What was the envisaged role of the Council of the 25 Barons?
10. Did the Pope have the legal right to declare Magna Carta void? Why or
why not?
11. Who or what prevented Prince Louis of France (the future King Louis
VIII of France) from becoming King of England?
12. What was the significance of the role of William Marshal under King
Henry III?
13. How many times has Magna Carta been confirmed by the English
monarchy? Why were these confirmations issued?
14. What is the significance of Magna Carta being part of the current laws
of NZ?
2
LAWS101 @ Carrington
Legislation
Practice Test – 13 May, 7pm
Advice
1) Go to the test! Even if you don’t get a chance to do much or any
revision for it, it is probably the most valuable 55min of your year – you
get to practice under pressure in an exam setting where the result
doesn’t matter.
2) If you have time before the test, practice doing an opinion under
controlled conditions on 55 minutes (get a stopwatch, and turn off your
cell-phone/internet so you don’t get distracted.) Each of the past exam
papers for LAWS101A will have an opinion question that you can do.
3) You will get a set of facts and be asked whether a conviction is likely.
4) Read the facts and the statute carefully.
5) Plan briefly – spend 10 mins doing this and making sure you have a
clear picture of the facts in your head before you put pen to paper.
6) Once you have written a brief plan, write each issue then write the
discussion directly under it – do not re-write the list of issues.
7) Use a highlighter to highlight your issues so that they stand out on the
page.
8) Do not take anything for granted – explain both contentious and noncontentious issues.
9) Contrary to what I may have said earlier, make your interpretive
techniques explicit: “If noscitur a sociis was used here” (this means you
must learn to spell them).
Case Analysis
Types of cases:
These are my own classifications but this gives you a general introduction
about what you are going to be hearing about from Mark Henaghan.
(1) Foundation Cases.
o Some of the most famous and influential common law cases in
the world.
o These are the ones that are the focus of LAWS101 – Rylands v
Fletcher, Donoghue v Stevenson.
(2) Frontier Cases
o The latest decisions in the “lines” of case law started by these
foundation cases.
3
LAWS101 @ Carrington
(3) Example Cases
o Cases which provide supporting evidence (on different facts) for
the principles contained in the foundation cases. Application of
the ratio decedendi of each foundation case.
(4) Supporting Cases
o Cases in which the Court has agreed with and supported the
principle in a foundation case. Often contain useful obiter dicta
statements about the utility of the foundation cases.
When reading cases… Always ask WHY you are being asked to read it:
o
o
o
o
To understand a particular area of law;
What this case adds to it?
Relative importance of case?
To get familiar with the judges’ reasoning.
Some key terms
ratio decidendi – literally means the reason for deciding. The ratio of a case
is the principle of law a judge uses as a basis for his decision.
obiter dictum/dicta – Means a statement ‘on the side’. Sometimes judges
talk about cases hypothetically. These are not legally binding because it is
essentially a personal opinion being postulated – nothing more. However, it is
not irrelevant so it should not be ignored. Something that is obiter dictum does
not form part of the ratio decidendi. Lawyers often find it difficult to discern
between the ratio of a case and what is merely obiter. The distinction is formal
in the relevance of a judge’s statements about the legal issue(s) before him. A
statement of law that is not directly relevant to the actual decision is regarded
as obiter.
doctrine of precedent – operations/operates on the principle used by the
judge to frame his decision on the legal issue with which he is faced.
Doctrines of Precedent are created by lawyers and continue to be molded and
used by lawyers.
When would a court vary/stray from its decisions? – Changing social attitudes,
conditions in NZ; when a socially just result outweighs procedure; new
academic thinking or precedent abroad. The more judges that sit on a bench
and form the majority, the stronger the precedent value of the decision they
make.
4