VCE Stuff > VCE Legal Studies
Difficulties in gaining access to the law
Pencil:
--- Quote from: "brendan" ---
Then that's a problem for the Parliament not for the judiciary.
--- End quote ---
true, but it's impossible for parliament to cover all situations that arise, don't courts need to be able to make a decision in these cases? (or is this what you mean by developing the common law, which you agree with?)
brendan:
--- Quote from: "goosefraba" ---
true, but it's impossible for parliament to cover all situations that arise, don't courts need to be able to make a decision in these cases? (or is this what you mean by developing the common law, which you agree with?)
--- End quote ---
yes. the problem you described is a problem for the parliament not the courts. judges are simply not in a position to do the things i think you are suggesting they ought to do.
Pencil:
--- Quote from: "brendan" ---1 or 2?
I would not disagree to the extent that they were ridding the common law of obvious falsehoods such as terra nullius. However, i would have much rather preferred legal change to be effected through the legislature.
--- End quote ---
Yeah terra nullius was just ridiculous. I guess then there's the argument that because the courts are independant, they are able to make laws in areas such as aboriginal land rights without fear of an electoral backlash.
brendan:
--- Quote from: "goosefraba" ---
--- Quote from: "brendan" ---1 or 2?
I would not disagree to the extent that they were ridding the common law of obvious falsehoods such as terra nullius. However, i would have much rather preferred legal change to be effected through the legislature.
--- End quote ---
Yeah terra nullius was just ridiculous. I guess then there's the argument that because the courts are independant, they are able to make laws in areas such as aboriginal land rights without fear of an electoral backlash.
--- End quote ---
again, i wouldn't say they "make law" - they change and develop the law.
[b]Chief Justice Murray Gleeson, "Courts and the Rule of Law", The Rule of Law Series, The University of Melbourne, 7 November, 2001[/b]
--- Quote from: "Gleeson CJ" ---It is unfortunate that the process by which judges, usually judges of courts of appeal, develop and refine the common law, is often described as "making law" in a manner that implies that the process is legislative. The judicial method is, or ought to be, different from the legislative method (See The Hon. M. H. McHugh, The Judicial Method (1999) 73 ALJ 37). In Breen v Williams (1996) 186 CLR 71 at 115, Gaudron and McHugh JJ said:
"Advances in the common law must begin from a baseline of accepted principle and proceed by conventional methods of legal reasoning. Judges have no authority to invent legal doctrine that distorts or does not extend or modify accepted legal rules and principles."
--- End quote ---
Pencil:
--- Quote from: "brendan" ---
again, i wouldn't say they "make law" - they change and develop the law.
[b]Chief Justice Murray Gleeson, "Courts and the Rule of Law", The Rule of Law Series, The University of Melbourne, 7 November, 2001[/b]
--- Quote from: "Gleeson CJ" ---It is unfortunate that the process by which judges, usually judges of courts of appeal, develop and refine the common law, is often described as "making law" in a manner that implies that the process is legislative. The judicial method is, or ought to be, different from the legislative method (See The Hon. M. H. McHugh, The Judicial Method (1999) 73 ALJ 37). In Breen v Williams (1996) 186 CLR 71 at 115, Gaudron and McHugh JJ said:
"Advances in the common law must begin from a baseline of accepted principle and proceed by conventional methods of legal reasoning. Judges have no authority to invent legal doctrine that distorts or does not extend or modify accepted legal rules and principles."
--- End quote ---
--- End quote ---
well, for the exam they make law ok. Whatever word you prefer
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