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Difficulties in gaining access to the law

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brendan:
well such descriptions of the judicial method are inaccurate.

Pencil:

--- Quote from: "brendan" ---well such descriptions of the judicial method are inaccurate.
--- End quote ---


Not necessarily. You say 'change and develop the law' others say 'make law'. Obviously they don't make law how parliament makes law, but through the doctrine of precedent and statutory interpretion they do engage in law-making. I mean you can dismiss VCAA, or any of the textbooks or examiners etc, but we wouldn't have entire chapters on 'law-making through the courts' if there wasn't some validity in the wording.

Pencil:
And anyway, I was asking a question as to what I should write in the exam. I can't exactly go in there and answer a question that says 'There is no need for courts to make law. Parliaments do that job well enough. Do you agree?' and be like 'well ya know courts don't actually 'make law' like the textbook says..'

brendan:

--- Quote from: "goosefraba" ---And anyway, I was asking a question as to what I should write in the exam. I can't exactly go in there and answer a question that says 'There is no need for courts to make law. Parliaments do that job well enough. Do you agree?' and be like 'well ya know courts don't actually 'make law' like the textbook says..'
--- End quote ---


You write what you think is correct. It asks whether you agree or disagree. So you they will mark it depending on your how strong your argument is. I would write a summary of what I have said here. That the courts do not, or ought not, 'make the law', the role of the judiciary is to develop and gradually refine the law. I've provided you with my position, and on what grounds and authority i base my position on. I found the arguments of McHugh J, Gleeson CJ, and Dyson J in relation to the role of the courts highly persuasive. You don't have to agree with me, but that is my position, and the position that i would think is correct.

Pencil:

--- Quote ---You write what you think is correct. It asks whether you agree or disagree. So you they will mark it depending on your how strong your argument is. I would write a summary of what I have said here. That the courts do not, or ought not, 'make the law', the role of the judiciary is to develop and gradually refine the law. I've provided you with my position, and on what grounds and authority i base my position on. I found the arguments of McHugh J, Gleeson CJ, and Dyson J in relation to the role of the courts highly persuasive. You don't have to agree with me, but that is my position, and the position that i would think is correct.
--- End quote ---


I'm not saying I don't agree with you, and I am interested in your opinion. I'm just saying that the question presupposes that the courts do make the law. Meaning I can write that I agree that they should, or that I don't think they should, or somewhere in-between. I can't say that the courts don't make the law.

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