Hello to all my readers,
In light of many of us now being on holidays, I am wondering what you are all up to for study over the break. Are you reviewing all of unit 3 or do you still have that one topic to polish off.
Let me know where you are up to and I will have a look for some questions rearding that area of study.
Let me know and I will try to help you as much as I can
Regards,
JB
Dear Readers,
The next question I will do in a few parts.
Final Part:
Explain the operation of the Doctrine of Precedent and evaluate two strengths of this method of law-making.
A key criticism is that the Doctrine of Precedent creates rigidity; however, there are four mechanisms in place to keep the common law flexible. These techniques are: reversing, overruling, disapproving and distinguishing. For example, distinguishing has allowed the common law to develop as any court can distinguish as long as the material facts are different. For example, the tort of negligence has developed from manufacturer’s liability (Donoghue & Stevenson 1932) to professional advice (Shaddock 1981).
However, some judges may be conservative and take a non-interventionist approach as seen in Justice Mason’s ruling in the Trigwell case 1978 as he said “the right to make laws should be confined only to parliament”. This is a weakness of the courts because it allows archaic precedents to perpetuate such as rape in marriage. Therefore, Parliament is able to abrogate these archaic precedents as it did in the Wrongs (Animals) Act 1984.
On the whole, the courts primarily are able to resolve disputes before them, and, despite weaknesses, the Doctrine of Precedent is an effective, and important law-making function of the courts.
I hope this can help you all.
JB
Legal Studies VCE 