Question

a. What is a constitution? b. State any three (3) three features of a constitution. c. State three (3) disadvantages of case law. d. Explain the following legal doctrines: i. Stare decisis ii. Orbiter dicta.

Answer 1

a) A constitution is primarily a set of rules and principles specifying how a country should be governed, how power is distributed and controlled, and what rights citizens possess. It is usually written down and contained within a single document.

b) Three main characteristics of a constitution are treated: (1) a constitution is a supreme law of the land, (2) a constitution is a framework for government; (3) a constitution is a legitimate way to grant and limit pow- ers of government officials. Constitutional law is dis- tinguished from statutory law.

c)

Disadvantages

• The law is very complex because there is a vast number of cases, and inconsistencies can arise. The same judgement may contain differing, and even conflicting, arguments making the precedent hard to understand and even harder to apply.
• The law can become rigid, leading to inflexibility and loss of development.
• Case law is reactive rather than proactive. Rather than dealing with issues in advance and stating the law, a case is considered and a decision made once a particular situation has arise.

d)

1-Stare decisis is a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case. Stare decisis ensures that cases with similar scenarios and facts are approached in the same way. Simply put, it binds courts to follow legal precedents set by previous decisions.

2-Obiter dictum, Latin phrase meaning “that which is said in passing,” an incidental statement. Specifically, in law, it refers to a passage in a judicial opinion which is not necessary for the decision of the case before the court. Such statements lack the force of precedent but may nevertheless be significant.