Another pleasant Sunday night (:tickedoff:) spent on Legal studies... *rolls eyes*
Can you guys please check this response for me and mark it out of 8? I need an extra opinion before I submit it to my teacher LOL
Cheers~
Explain how courts make law and evaluate the effectiveness of this method of law making. / 8 marksCourts can make laws through establishing precedent and statutory interpretation. The Doctrine of Precedent requires courts to follow precedents in order to determine the common law, and statutory interpretation is when legislation is given meaning by the courts because there are unclear words.
Judges in courts can make law as precedent is based on the principle of Stare Decisis, meaning that judges stand by what has been decided by higher courts, when the facts of cases are similar. The reason for a judge’s decision, known as Ratio Decidendi, is the binding and regarded as a statement of law to be followed. Lower courts must follow the decisions of a higher court.
However, not every comment in a judge’s decision is binding, as things said ‘by the way’ (Obiter Dictum) simply aid decisions and are not binding. The Ratio Decidendi, the reason of a judge’s decision is binding and must be followed, thus ‘making law’. Obiter Dictum is known as persuasive precedent, and is a point of reference that may influence future decisions.
A judge can ‘make law’ when a case comes before court and there is no previous legislation or precedent in the area. Or, they are required to interpret the meaning of a statute, as it is unclear. Judges do not make laws whenever they wish. In order to apply precedent, judges analyse judgements from previous cases, determine and extract which parts may be binding, then adapt and modify an existing Ratio Decidendi for a new case. They may develop completely new precedent if previous binding or persuasive precedents are not applicable to a new case.
Judges can reverse a previous decision if a case is appealed, and overrule the lower court’s decision if they disagree with it. Disapproving is when judges reach a different decision for a similar set of facts – they refuse to follow an earlier decision of another judge at the same level. If a case is similar to a past case, however a judge does not want to follow an existing precedent, they may distinguish between the facts to create different precedent.
‘Making law’ via the Doctrine of precedent provides for consistency. Litigants can feel confident that their case will be treated similarly to past cases, and can expect a fair outcome. This is how lawyers can give advice to their clients. However sometimes even when two cases may appear similar, the process of overruling, reversing, disapproving and distinguishing may result in two very different decisions.
Another positive of precedent is that it allows growth in law. Judges, over the years, hear similar cases – this allows them to expand precedents in a particular area. An example of this is the ‘piecemeal’ approach in developing the law of negligence, which began with a ‘snail in ginger beer’ in 1932 in the UK, and was expanded to cover duty of care, negligent advice, and negligence of property. On the other hand, growth in the law is slow as courts must wait for cases to come before them, and parties must have enough standing and be financially capable.
Courts can also make law through statutory interpretation, and this also contributes to the establishment of precedent. Judges can often contribute to laws in which ways Parliament cannot; they are not under political pressure. Statutory interpretation is when judges decide on the meanings of unclear phrases in legislation, when a case is brought before them. Judges need to interpret statutes because they may be complex, unclear in intent, or not up to date.
Judges in courts use a variety of sources to gain an understanding of a statute. Intrinsic are materials that come from the legislation itself, such as the long title, headings and preamble. These help place an Act in context and make its original intention clearer. Extrinsic materials are found externally, such as Hansard, a record of parliamentary debates, committee reports and even dictionaries and the ‘Interpretation of Legislation Act 1984 (Vic.)’
A judge may use ‘literal rule’ to interpret legislation, meaning that they will take the literal, dictionary meaning of an unclear phrase. However if they believe that a statute does not achieve the intention of Parliament, they make instead look at the purpose of the statute instead, known as the ‘purpose approach’. Edjusdem Generis means ‘of the same kind’, and is relevant to legislation where a number of specific terms are followed by a very general term, such as, “and other stones”. A narrow reading would allow legislation to only relate to the specific items listed.
When a court interprets an Act, it gives meaning to the words or terms used in the Act – the words in the Act do not change. The meaning of the Act is determined in order to settle a dispute and form precedent. The interpretation becomes law.
Statutory interpretation is an effective way for courts to ‘make law’ because it forms precedent that are followed by lower courts, and judges can make law in areas where Parliament may avoid. The unclear meanings of an Act are brought to life, although the Act itself is never changed, and can be changed by Parliament. This is a positive because if a court’s interpretation is no longer consistent with the views and values of the society, it can be changed. Furthermore, a wide interpretation of the statute may extend the law, e.g. Franklin Dam decision that extended what ‘external affairs’ covered.
However, the judges who interpret legislation are not elected and may not be representative of the community. Judges in courts also cannot interpret unclear legislation whenever they wish; they can only act on cases before them. Courts are also unable to seek public opinion when interpreting legislation and they may be conservative and inflexible.
On balance, both the Doctrine of Precedent and statutory interpretation provide for effective ways to make or change the law, and their benefits outweigh their weaknesses.
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