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Analyse how the doctrine of precedent affects the ability of the courts to make law. - VCE - SSCE Legal Studies - Question 7 - 2023 - Paper 1
Question 7
Analyse how the doctrine of precedent affects the ability of the courts to make law.
Worked Solution & Example Answer:Analyse how the doctrine of precedent affects the ability of the courts to make law. - VCE - SSCE Legal Studies - Question 7 - 2023 - Paper 1
Step 1
The courts do not have the same powers as parliament to make and amend laws.
Answer
The doctrine of precedent establishes that courts are fundamentally not empowered to create laws in the same way that the Parliament does. Instead, their primary function is to interpret and apply laws as they exist. When a case is brought before a court, judges rely on previous decisions, known as case law, to guide their rulings. This means that while courts can influence the development of law through interpretation, they operate within the framework set by existing statutes.
Step 2
Judicial interpretation and the evolution of common law.
Answer
While courts do not create laws outright, they contribute to the development of common law by interpreting statutes and precedents. Each case acts as a stepping stone, subtly shaping legal principles over time. This is exemplified in the concept of 'judge-made' law, whereby decisions from higher courts set binding precedents that lower courts must follow, ultimately leading to the evolution of law as new cases arise.
Step 3
Judges are not free to make law as they wish, particularly in lower courts.
Answer
Judges operating in lower courts are bound by the principle of stare decisis, which obligates them to adhere to the rulings established by higher courts. This limits their ability to create legal rules independently since their decisions must align with higher court precedents. In this way, while judges can interpret and apply existing law, they cannot generate new laws on their own.
Step 4
The hierarchy of courts and their law-making powers.
Answer
Different courts possess varying capacities to make precedents. For instance, higher courts, such as the Supreme Court, have the authority to establish new precedents that lower courts must follow. Although judges at these levels can create significant legal changes, they still function within specific judicial frameworks and legal principles. Lower courts must demonstrate consistency with established case law, thus limiting their law-making capabilities.
Step 5
The role of novel cases and expanding existing precedents.
Answer
In cases that present unique circumstances, where no past cases exist, judges may have the opportunity to explore expanding existing precedents. However, this is contingent on thorough legal reasoning and an alignment with the principles of justice and equity. This highlights the balance judges must maintain between adhering to precedent and addressing new legal challenges effectively.