Strengths And Weaknesses Of Law-Making Through The Courts

Front 1

Strength: Precedents create certainty, consistency and predictability

Back 1

Precedents create certainty, consistency and predictability. Similar cases are decided in a like manner to a previous case. People can look back to previous cases to give them some idea of how a court will decide a particular case. Precedent provides some protection and guidance for judges, in that they can refer back to previous cases and decide accordingly. However, it can be difficult to locate the common law relevant to a particular situation because of the many cases that may be decided in the relevant area of law.

Front 2

Weakness: Finding precedents can be difficult.

Back 2

Finding precedents can be difficult. The process of precedents can be an inefficient means of making and changing the law, because finding the relevant precedents can be time-consuming. Identifying the ratio decidendi for the particular cases may be difficult, as there could be judgments from different judges. In this situation, the lawyer must look at the decisions from judges who decided in a similar way and formed the majority. Judges who do not agree with the majority are referred to as dissenting judges. In some instances there are conflicting authorities. This means that there is more than one judgment on a particular issue, and there are differences in the reasons for the decisions in some judgments. If this occurs, the judge needs to decide which precedent is most appropriate to the set of circumstances before the court.

Front 3

Strength: Courts can change the law quickly

Back 3

Courts can change the law quickly. Courts can make a quick decision that can resolve a dispute for the parties in the case before the courts, and create precedent to be followed by the courts and others in the community in the future. For example, in December 2013, the High Court acted quickly to determine whether the Marriage Equality (Same Sex) Act 2013 (ACT), which legalised same-sex marriage in the Australian Capital Territory, was inconsistent with the federal Marriage Act 1961 (Cth). The ACT Act permitted same-sex marriage ceremonies to commence from 7 December 2013. On 12 December 2013, the High Court held that the ACT Act could not operate concurrently with the federal Act, and the ACT legislation was struck down. However, the courts cannot make law unless a case is brought to court.

Front 4

Weakness: Changes in court-made law can be slow

Back 4

Changes in court-made law can be slow. The courts can change the law immediately when a case is before them, but changes in a particular area of law through the courts can be slow to develop, such as the law of negligence, which continues to broaden its scope. Changing the law depends on litigants (a person who takes a matter to court is a litigant) taking a relevant case to court.

Front 5

Strength: Courts are not subject to political influence when making a decision

Back 5

Courts are not subject to political influence when making a decision. Judges are appointed, rather than elected, so they are not subject to the same political pressure experienced by members of parliament. Their independent and unbiased status allows them to make more objective assessments of the case and the law before them and of the need for change in the law. However, judges do not always reflect current community values when making a decision.

Front 6

Weakness: Courts are not an elected body

Back 6

Courts are not an elected body. Members of parliament are elected by the people to make laws on behalf of the people. Judges are not elected. At times the courts are called on to make laws when deciding on a new issue or interpreting Acts of parliament. The laws made by courts form part of the law as a whole to be followed in the future.

Front 7

Strength: Courts can develop areas of law.

Back 7

Courts can develop areas of law. Courts may create a new area of law, or change the law, to cover a situation that was not previously covered by statute law or common law. This is essential because new situations are constantly arising. The law of negligence was first established in the courts and was developed further in the courts as the need arose in the community and in accordance with fairness for the parties. The courts have continued to develop the law in a wide range of human activities in order to keep the law applicable to changing times. However, courts may decide to act conservatively because they feel that law-making should be left to parliament.

Front 8

Weakness: Courts are not able to investigate an area of law.

Back 8

Courts are not able to investigate an area of law. Parliaments, through parliamentary committees, are able to investigate a whole body of law when deciding whether to change the law. They are also able to seek the advice of specialist bodies (for example the Victorian Law Reform Commission) and consult the public to determine what changes the people would like to occur. However, courts have no opportunity to investigate the views of the public or specialist bodies; they are limited to the resources they have available in the court, although they can consult extrinsic material. Also, they are limited to the part of the law that is the subject of the case before them.