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Legal Studies Evaluation of the Courts (Weaknesses (Reluctance of courts…
Legal Studies Evaluation of the Courts
Strengths
Consistency and Certainty
Doctrine of precedent ensures a level of consistency
in that each new case is decided in the same way as previous cases
This
provides an element of certainty
as people can look back at previous cases to give them an idea of how a court will decide a particular case
Change the Law Quickly
Parliament is the main law-making body and can make laws on all issues within its jurisdiction but the process of law-making through parliament can be slow
Courts
can make decision quickly
that can resolve a dispute for the parties n the case before the courts
Judges need to make a decision when faced with a case before them and cannot stay silent on issues like parliament
Flexibility
The courts
provide flexibility
in the law-making process
The courts can change the law when it becomes outdated, if a case is brought before the courts
The process of
distinguishing, overruling and reversing
can also be used to keep the law from being too rigid and static
Judges are not subject to Political pressures
Judges are not democratically elected so they
are not subject to the same political pressure experience by members of parliament
Their independent and unbiased status allows them to make
more objective
assessments of the need for change in the law
Fill in the gaps in legislation
Parliament can make laws about a range of issues, but might not cover every set of circumstances that could arise
The courts
fill the gaps left by parliament
E.G. Kevin and Jennifer Case - Marriage Act was silent on the meaning of man and women
Courts can develop areas of law
The law of negligence was first established in the courts and was further developed in the courts as the need arose in the community and in fairness for the parties
The
courts continue to develop the law
in a wide range of human activities in order to
keep the law applicable to changing times
E.G. Snail in a Bottle case - Negligence
Courts can give meaning to an act of parliament
Courts can
interpret the words in an act of parliament
to fit with the current situations and provide a just outcome
E.G. 'Man' - Marriage Act (Kevin and Jennifer)
Weaknesses
Restricted to cases before the courts
Courts are restricted by the fact that
they can only make laws relating to points of law brought up in cases that come before them
People may not be aware of their rights to take a matter to court to resolve it in a fair way
Costly
Some people may be aware of their rights but unable to afford the cost of taking a matter to court to rectify an unjust situation
Changes can be slow
This courts can change the law immediately when a case is before them,
but this depends on people taking a relevant case before the courts
Some ares of law develop slowly and progressively broaden in scope
Difficulty of finding precedents
Finding precedents that are relevant can be very time consuming and inefficient
Ex Post Facto
Court decisions are made
after the fact
An action take place then the courts make their decision on whether it is against the law after the action has occurred
An example of this is the Grant V Australian Knitting Mills Case
Bound by previous decisions
A court's ability to change the law
may be restricted by the doctrine of precedent
It may be bound by the decision of an earlier case from a higher court in the hierarchy that may not be bale to be distinguished
However the
High Court is not bound by its previous decisions
and is able to change the law when a case comes before it
Courts do not have resources for law-making
Parliament through parliamentary committees, is able to investigate a whole area of law and decide what changes in the law are required
Courts on the other hand
are only able to deal with the same area of law brought before them
However the courts are allowed to also look at extrinsic material
Courts are not an elected body.
Judges are not elected
unlike members of parliament
The courts are sometimes called on to make new laws or the interpret the acts of parliament
The law set down by the courts by the precedents in these cases form part of the law as a whole to be followed in the future
Reluctance of courts to change the law (conservatism)
To uphold certainty and consistency, judges tend to be Conservative in their attitudes towards changing the law through the courts
They often choose to follow previous decisions even when not bound by the which can sometimes lead to injustices
Courts will often see parliament as the lawmaking body, and their role more in terms of interpreting past decisions
In most instances case law complements statue law although
sometimes judges apple an outdated precedent
which can cause community concern
In these instances parliament can pass a statue that abrogates the courts decision