LB 100: Predicted sample question with answer Midterm

Exam
Do the bullet point planning & few actual essays
1. Thailand is a Civil law country, to what extent do you agree?
2. Distinguish the characteristics of Common law to Roman law.
1. Thailand is a Civil law country, to what extent do you
agree?
2. What are the advantages for a legal system of using
the concept of stare decisis? Are there any
disadvantages?
Stare decisis is Latin term meaning to stand by decisions, which is
a method of courts to abide by or adhere to decisions in earlier
cases. It is also known as the doctrine of precedent, and it is one of
the distinctive features of the common law system. The doctrine of
precedent contains many benefits in regards of saving time; yet, still
possess flaws and disadvantages. Hence, throughout this essay
regards to stare decisis, the elements of benefits will be mentioned,
and the ratio decidendi will be discussed to evaluate the
disadvantages of the stare decisis. Moreover, the concept of
separation of powers and parliamentary sovereignty will be
discussed to further examine the disadvantages associated with
doctrine of precedent.

It is recognized as one of the source of law as case law

Decisions made in higher courts binds lower court judges with
later cases
They are forced to read the same conclusion
Further it is known for binding statutory interpretation
Interpretation of law becomes binding to latter judges, e.g
definition of murder. Hence, the doctrine of precedent creates,
define and shape laws.

ADVANTAGE
Requires good hierarchy of court system and good case
reporting system, since the judges need to know what the
reason of the earlier cases and which courts they need to
follow. This increases the accuracy of legal system.
Doctrine of precedent is practical in regards to procedures,
since it applies law to current real disputes. Hence it is not
based on any theories, and it solves the problems more
accurately.

It can be said that notion of stare decisis is fair. As one cases

is decided with specific reasons, the latter similar cases shall
be decided in the same way regardless of whom they are.
Also provides certainty. The outcomes of disputes are
predictable. It allows laymen to predict the outcome of their
litigation by looking at precedent cases. Judges are easy to
decided, Hence litigation will be finished in short period of
time- less time consuming.
Has adaptability in the sense of adjusting itself to new cases,
new circumstances and societies.
Speed- judge develops law as soon as need arises.
Further does not require political will or parliamentary time
dedicated to debate.

DISADVANTAGE
Stare decisis is a rigid system, and it is very conservative.
Although the norms and conditions of society change over
time, the judgments may still be bound to precedent that is
made long time ago. Thus, it can be said that nature of
precedent cannot cope with the change of the society, and it
prohibits the development of the law.
In Judgements of English courts, it contains summary of facts
and statements of law. Within the statements of law Ratio
Decidendi contains the reason for such decision, and some
cases judges states ambiguous reasonings, which makes it
difficult for latter judges to apply the reasons.
It further implements, uncertainty in the sense of narrow
focus. The judgments are focused on case-by-case basis;
hence it does not consider the wider effect of the
jurisprudence on society.
Furthermre, the judges applying the legal principles are
uncertain. In different cases, the judges may have different
interpretation about the legal principles; hence it makes it
difficult for the latter judges to make decision based on legal
principles.
Unwritten law- Further, its unfair in sense that the law was not
laid down, the party before the judge had no knowledge that
its conduct was considered illegal. The law applies
retrospectively and it can be claimed that its unfair.
Judicial law making- this idea is that judges makes decision
which bounds the latter courts to reach the same decision,
hence in one aspect is it considered as judge making the law.
This is problematic in sense of the theory of Separation of
Powers, where it believes in the separation of functions of
legal system to prevent absolutism. Yet, the doctrine of
precedent, allows the judicial power to perform the legislative
power as well, which ultimately considered as undemocratic,
regarding that judges are not elected.

Judges are not trained for law-making, hence this doctrine of

precedent is unprofessional

3. Explain and analyse the separation of powers in

English legal system.
In English legal system, the main legal powers are split into three
organs, which are the executive power, the legislative power, and
the judicial power. These three main organs have different roles and
function, and Separation of Powers is based on the theory that the
concentration of all these functions of body into one may lead to
absolutism and unfairness. Hence, the bodies shall not posses all
powers to exercise every function. Separation of powers allows the
state to function efficiently without tyranny. Regarding the
separation of powers, it is also significant to explore the principles of
Parliamentary Sovereignty, and the function of state to further
examine the theory of separation of powers. Moreover, the
principles of judicial law making will be examined to see the flaw
that exists in the notion of Separation of powers.
4. What is the method of not following the precedent if
preivious case is unfavorable?

5. Moral rules or legal rules: which rules are more

important in society?
6. Law is a tool to create justice Do you agree?
Conception of Justice is a controversial topic, and it is very
ambiguous and subjective notion. Hence, regarding to the phrase
law is a tool to create justice cannot be answered without the
explanation of what is justice. Regarding to answer this question, it
can be said that law become as tool to create justice not in every
circumstances. In order to examine this thesis, the concept of moral
rules and legal rules should be further discussed. Moreover the
conceptions of legal scholars should be mentioned to further

Justice can be viewed in different perspectives, in differet

society, political groups
such as Utilitarianism, Libertarianism, Egalitarianism, and
Kantianism. All these different idea of Justices are subjective
and it is almost impossible to generalize the defitinion of
justice. Yet, the most commonly known idea of justice is

Benthams utilitarianism, where it believes in the theory for

the good of majority of the people.

Although we cant generalize define exactly what is justice, we

can say that justice is always reflected in laws of different
places according to different concept of justice which majority
of people believes in
Furthermore, it can be claimed that law in itself is neutral, and
it works as a tool to be utilized.
These neutral tools of law are applied differently and
interpretated differently according to different justices, which
people trusts in.

7. The Constitutional Court is not a superme court.

Please comment.
8. Explain the types of unwritten and written law
recognized to be the source of law in Thai legal system.
Since the modernization of Thai law during the 19th century,
Thailand has codified the Thai Civil and Commercial Code (TCCC).
Within this code of Section 4, it states and implies what are the
sources laws, including written and unwritten law.
9. The case of Supreme court decision No.157/2524, and
analyse which source of law the Supreme court used in
this case.
10.