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3 Cards in this Set
- Front
- Back
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Judge's Ability to make law |
Courts make law by: • deciding on a new issue that is brought before them in a case or when a previous principle of law requires expansion to apply to a new situation • statutory interpretation – interpreting the meaning of the words in an Act of parliament when applying them to a case the court is hearing. The reason for the decision of a court establishes a principle of law that is followed by future courts and forms part of the law, along with Acts of parliament. The reason for the decision is called the ratio decidendi. |
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Restrictions |
Judges and courts are only able to make laws in the following instances. • if a case is brought before a superior court – Judges can only develop or change the law when a relevant case is brought before them. A case will be brought by a person who feels aggrieved or injured and has decided to have the issue resolved in court. A person bringing a case must have ‘standing’; that is, be directly affected by the case. Taking a case to a higher court is expensive. Further, the court can only make law on the relevant issues in question in that case. • if there is no previous binding decision in a higher court in the same hierarchy that must be followed by the lower courts – The nature of common law is that the principles of law established in a higher court are binding on lower courts in the same hierarchy.If a court is bound by a principle of law that has been established in a higher court,there may be an opportunity to establish a new principle of law, if it can be shown that there are distinguishing differences between the previous case and the case before the court. |
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