Court made law.

[smithy16]

Im a little bit stuck on this question:
'Referring to reversing, overruling, distinguishing and disapproving; explain the ability of courts to make law.'

I know that the courts make law through the doctrine of precedent, and i know reversing, overruling, distinguishing and disapproving, but i am getting stuck on whether or not to take about obiter dicta, stare decisis, binding and persuasive precedent.

Can someone pleas help

[eeps]

You need to explain what the doctrine of precedent is; including what stare decisis/obiter dictum/ratio decidendi are etc. in your response. Give a brief explanation of reversing/overruling/distinguishing/disapproving as well. Then, discuss how courts make law; through novel cases/statutory interpretation.

[smithy16]

I had a go, but i couldn't really fit in obiter dicta and persuasive precedent. Will this matter?

It is through the doctrine of precedent, which is a system used by the courts to ensure that similar cases are dealt with by similar law or in a similar fashion; that the courts are able to make law. Common law or precedent made by the courts is made by ratio decidendi statements given by judges in their law reports, which explain the legal reasoning behind their decision. Through the principle of stare decisis, precedent can only be set by a higher court or a court of ‘superior record’; and those precedents set in courts of superior record are binding on the all similar cases in courts beneath them. In order to ensure that the law made by the courts does not become too rigid and old, there are a number of approaches judges can take when dealing with precedent. Judges can distinguish the facts between a case and a previous case, allowing the judge to create a precedent of their own, without being bound by precedent. Where judges are bound by precedent, they can disapprove of the precedent if they disagree with it, which can influence judges in higher courts to change the law. Judges can overrule the precedent of a lower court; if they believe that the earlier case had been wrongfully decided; clearing the old precedent for a new precedent. When a case is appealed to a higher court, a judge can also reverse the decision and form a new precedent.

Law can also be made by the courts through the hearing of a novel (new) case, as well as through the interpretation of Legislation, which can both result in precedents or common law being created by the courts.

[eeps]

Courts make law on the basis of the doctrine of precedent. The doctrine of precedent is based on the legal principle of stare decisis; to stand by one’s decision, where the decision in higher courts is binding on courts lower in the same hierarchy. The ratio decidendi or the reasoning behind a decision forms the binding precedent which courts lower have to follow. This ensures for the consistency and predictability as parties are able to look back at previous similar cases and determine the likely outcome of their current case; it also provides a guideline for judges as to how to deal with the case. The obiter dictum or the comments made in passing, may have persuasive value in determining the outcome of a case in another hierarchy or in a higher court. It also assists to explain the ratio decidendi.

The doctrine of precedent also provides for flexibility through methods such as overruling, reversing, distinguishing and disapproving. Overruling and reversing are able to create new precedents, replacing the old precedents altogether. Distinguishing enables judges to avoid following old precedents because they are able to distinguish the material facts of one case from another. Disapproving is where judges are still bound to follow a precedent; however they can make dissenting comments which can eventually result in the change in the law (i.e. Trigwell case). Through these methods, the courts are able to keep precedents up-to-date and avoid the law becoming too rigid.

Another way courts may law is through statutory interpretation. This is where the judge in a higher court may have to interpret the meaning or word in an Act. This may be because the intention of Parliament was not clear when the Act was passed or there may have been time pressures in drafting legislation, resulting in loopholes or errors in the Act. The interpretation given by the judge, as consequence, may have to be followed by courts lower in the same hierarchy - if the Act is interpreted in the future. An example of this was the Studded Belt case, where a studded belt had to be determined if it was a 'regulated weapon' or not. This interpretation by judges may eventually become common law.

Above was my attempt at the question; although it's not complete yet. I would explain on your points about novel cases/statutory interpretation in greater detail, because there is a lot to discuss in this question. This exact question was on one of the commercial exam papers, if I remember correctly. Yeh, I think you need to discuss what obiter dicta and persuasive precedent are, because it's part of the doctrine of precedent. To me, it is better to give more than required if you're unsure how much detail is needed. It's better to be safe than sorry.

[smithy16]

Yeah what you said is pretty spot on. Although i think you expanded a bit too much on the statutory interpretation aspect of the question. If it were an 8 or a 10 mark question i would go into detail about statutory interpretation, however in 12 minutes (6 marks x 2) i think just briefly describing what statutory interpretation is and how it creates precedent would be sufficient. I think all i am having trouble with is trying to incorporate all the aspects of the doctrine of precedent into one paragraph: but you seemed to do it pretty well i must say.

[yourwork]

http://yourwork.com.au/?p=441

This post covers court made law and reversing, overruling etc.