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The following comment appeared in a local Victorian newspaper - VCE - SSCE Legal Studies - Question 10 - 2012 - Paper 1
Question 10
The following comment appeared in a local Victorian newspaper. Why are judges able to change laws that are already in place? They should not be able to change laws.... show full transcript
Worked Solution & Example Answer:The following comment appeared in a local Victorian newspaper - VCE - SSCE Legal Studies - Question 10 - 2012 - Paper 1
Step 1
Discuss the ability of courts to change the law
Answer
Courts have the authority to interpret statutes and set legal precedents that may change the application of existing laws. This principle allows courts to adjust the interpretation of laws as societal values and conditions evolve.
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Interpretation of Legislation: Courts can interpret the meaning of laws passed by Parliament. This interpretation can lead to changes in how laws are applied without altering the law itself. Through judicial decisions, courts can clarify ambiguities, establishing legal precedents that become binding in future cases.
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Statutory Interpretation: Judges often utilize techniques like 'literal', 'mischief', and 'purposive' approaches to give meaning to legislation. Depending on the chosen method of interpretation, the outcome can vary, potentially altering the legal landscape.
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Precedent and Common Law: Courts, particularly higher courts, create precedents that lower courts must follow. Over time, these precedents may build upon or diverge from existing statutes, effectively changing the law by establishing new interpretations that reflect evolving societal norms.
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Judicial Activism vs. Restraint: There is an ongoing debate between judicial activism—where judges are seen as expanding or changing the law—and judicial restraint, which emphasizes adherence to the intentions of lawmakers. Activist judges might feel justified in enacting changes necessary for justice, while others prioritize stability in the law.
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Limitations on Judicial Power: Despite their ability to change the law, judges cannot create laws independently; they can only adjust interpretations within the bounds of existing legislation. Moreover, legislation passed by Parliament can override judicial interpretations.
In conclusion, while judges can influence and change the application of laws through interpretation and precedent, their power is constrained within the framework set by the legislative body.