Legal Studies Unit 3 AOS 3 – The role of courts

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 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are forced to wait for a superior court to reverse or overrule the precedent or wait for Parliament the abrogate the outdated precedent.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