Legal Studies Unit 3 AOS 3 – The role of courts

Dear Readers,

The next question I will do in a few parts.

Part two:

Explain the operation of the Doctrine of Precedent and evaluate two strengths of this method of law-making.

However, lower courts must follow binding precedents, even if they disagree if they don’t have the scope to legally manoeuvre. Therefore the Doctrine of Precedent also creates rigidity which can limit the effectiveness of the doctrine as  Judges have to follow archaic precedents (as seen in R v Hakopian) and are forced to wait for a superior court to reverse or overrule the precedent or wait for Parliament the abrogate the outdated precedent.

 

Persuasive precedents do not have to be followed although due respect is paid. Persuasive precedents are from courts of equal standing, of lower standing, from other common law countries (e.g. South Africa), and other state hierarchies (e.g. NSW). Furthermore, judges may include ‘obiter dicta’ which are “matters spoken by the way” and are persuasive. These hypothetical statements are beneficial because the y help guide judges with similar cases in the future and assist in the evolution of common law.

 

I hope this can help you all.

JB