Legal Studies Unit 3 AOS 3 – The role of courts

Dear Readers,

The next question I will do in a few parts.

Part one:

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

Primarily, courts resolve disputes before them, and in doing so are able to make common law in two ways by applying the doctrine of precedent. The first way is through case law in a novel case (i.e. no law exists). This is beneficial because if Parliament has not made legislation in a controversial area for fear of voter backlash, e.g. abortion, the courts must respond by creating a precedent, e.g. R v Davidson 1969. The courts must respond to cases by creating law when there is either no legislation or if the legislation is ambiguous. The other way is through statutory interpretation where the courts interpret legislation by applying Parliaments purpose to the case. Statutory interpretation is required if legislation is ambiguous. For example, the Studded Belt case gave meaning to what constitutes a regulated weapon. The benefit of statutory interpretation is that it creates meaning to the words in a statute which can enable the resolution of a dispute.

The underlying reason for the Doctrine of Precedent is ‘stare decisis’ where judges will “stand by the decisions of the past”. This creates consistency as similar cases with similar facts will result in similar outcomes. This consistency is beneficial as litigants and their legal representatives will be aware if the likely legal outcome and the reasons for it. Furthermore, in their law reports judges will include their ‘ratio decidendi’ which is their reasons for their decision. This creates a precedent. The precedent can either be binding or persuasive depending on the position of the court in the court hierarchy. Lower courts are bound by precedents established in superior courts and have to be followed in order to create consistency. As a result, the superior courts with their learned judges are able to logically and fairly guide judges in courts of lower standing through binding precedents

I hope this can help you all.

JB

Legal Studies Unit 3 AOS 3 – The role of courts

Dear Readers,

Here is the second question:

Outline the operation of the doctrine of precedent.

The courts are able to establish common law through application of the doctrine of precedent. The doctrine of precedent operates on the principle of stare decisis (to stand by a previous decision). This means that a similar outcome is applied to cases of similar facts. New precedents are created through novel cases (where no legislation exists) and also through statutory interpretation (where the meaning of legislation is unclear).

The nature of precedents depends upon which court it was established in. Binding precedents are created in superior courts of record and must be adhered to by all lower courts. In contrast persuasive precedents do not have to be followed but exist to provide legal guidance, these precedents comprise of the ratio decidendi (legal reasoning) of lower courts, courts of equal standings, from other state hierarchies (NSW), from other common law countries (South Africa) and also of obiter dictum (things said along the way) which act to provide insight and guidance from learned judges on hypothetical situations. The doctrine ensures consistency and fairness between like cases. Precedents are found in law reports that include the facts of the case, the decision, the ratio decidendi (legal reasoning) and obiter dicta.

Furthermore, the doctrine of precedent provides a number of means of flexibility to enable evolution in common law and prevent any miscarriages of justice. Distinguishing has been the most effective means to aid in evolution as it establishes new common law if it is deemed the facts of a case are sufficiently different that an injustice would occur through the application of the precedent. In addition the method of reversing was demonstrated in the Studded Belt Case 1993 where the case was heard on appeal and the judge in the Supreme court determined that the case had been wrongfully decided in the magistrates court and according ‘reversed’ the previous decision replacing the old ratio decidendi with the new legal reasoning. Finally, the means of overruling and disapproving also aid in the flexibility of the doctrine of precedent.

 

I hope this can help you all.

JB

Legal Studies Unit 3 AOS 3 – The role of courts

Dear Readers,

Ive completed my series of questions regarding the protection of rights by the Commonwealth Constitution.

I have a few questions regarding the role of courts that I can help you with.

Here is the first question:

Evaluate two strengths of law making by the courts.

Law making by the courts via the application of the doctrine of precedent is advantageous as it results in consistency between like cases as the principle of stare decisis is upheld (to stand by a previous decision) and a similar outcome is applied to the case at hand. However this results in the creation of a great deal of rigidity in the doctrine as judges are required to perpetuate outdated precedents (as was seen in R v Hakopian) as they are binding and must be followed in cases of similar facts until they are abrogated by parliament or overruled by a superior court. Despite this the consistency that results from the doctrine provides legal guidance to future litigants and their legal representatives in regards to the likely outcome of their case.

Furthermore, law making by the courts is beneficial as it enables them to fulfil their primary function of resolving legal disputes in situation where a novel case arises and there is no applicable legislation or where the meaning of a statute is unclear. In addition, this significance is best demonstrated in situations where parliament is unwilling or unable to legislate for fear of a voter backlash as is demonstrated by abortion which was not decriminalised by parliament until 2008 following a report by the VLRC. The doctrine of precedent enabled the courts to create common law in the case of r v Davidson 1969 that clarified the law in regards to access to abortion. However, this ability to respond is limited in situations where the presiding judge is unwilling to create common law as a result of adhering to the non-interventionalist approach which Justice Mason advocates. In addition to being unwilled judges may be unable to create common law as a result of the inflexibility of the doctrine and the binding nature of precedents that give them little room to legally manoeuvre.

Overall, courts are effective as a means of law making, however this can be impinged by the nature of the judge and binding precedents.

I hope this can help you all.

JB