The courts as law makers: the doctrine of precedent

The courts as law makers: the doctrine of precedent

1. Australian courts are arranged in a hierarchy with lower courts dealing with less serious matters and the higher courts hear more serious matters

   • Lowest To Highest Magistrates court Country court Supreme court Court of Appeal High court

2. There are two situations in which the courts make laws

   • 1. Judges make laws on a new issue that arises in a case before them, on which there is no previous statute or common law or the current common law requires expansion
   • 2. Through the interpretation of legislation, as it applies to a case before them. The first situation will be the focus of this chapter and the second situation will be examined in chapter 9.
   • Court-made law is also known as case law, common law or law or judge-made law.

3. LIMITATIONS ON A JUDGE'S ABILITY TO MAKE LAW.

   • Judges can only make law if there is a test before them. That is they must wait for a case to arise with a legal issue that has not previously been considered by any court. or which tests the valitidyof an existing law, or which requires the interpretation of an existing law.
     • Either statue or common law
   • The position of the court in the hierarchy- only superior courts in the hierarchy create precedent. These are the courts of record, where the jugdment are reported.
   • The type of legal case and the mode of trial- precedent is usually only estasblished in cases on appeal (where there is know jury) or when hearing a civil case without a jury.
   • The personality of the judges- some see there role as adjudicators, not law makers, while other judges are progressives, who see their role is both adjudicator and law maker.
   • Judges may be bound by exsisting precedent that has been established by higher court, so they have to follow it.
     • judges may be able to distinguish the precedent

4. DEFINITIONS

   • Binding Precedent: Precedent created by courts higher in the court hierarchy that must be followed by a lower court when making a judicial decision.
     • Persuasive precedent: Precedent that courts are not bound to follow, such as those made by lower courts or courts of another jurisdiction, but a court may look to the precedent as being influential on their judicial decision making.
   • Obiter dictum (LATIN) Statements said by the way. These statments of a judges opinion on a legal principle or law which is not for direction consideration in the case at issue. it is only ever persuasive precedent.
     • Ratio decidendi (LATIN) The reason for the desicion. this is the statement of legal principle or law that forms the binding part of a precedent.
       • Stare decisis(LATIN) To stand by what has been decided.

5. DEVELOPING PRECEDENT

   • REVERSING
     • A judge in a higher court deciding a case on appeal may rule that the lower court wrongly decided that case. The superior court can reverse or change the previous decision. This creates a new precedent that is binding on lower courts.
   • OVERRULING
     • A judge deciding a case in a higher court may not agree with a precedent set in another case in a lower court. The superior court may decide not to follow the existing persuasive precedent and may over rule or change it.
       • This creates a new precedent that is binding on lower courts.
   • DISAPPROVING
     • A judge may refuse to follow an earlier decision of another judge in the same court.
       • Both precedents remain in force until another case on the issue is taken to a higher court, which can overrule the previous decision and create a new precedent
   • DISTINGUISHING
     • A judge may find that there are different material facts existing between the case currently being decided and the case in which an earlier binding precedent was set.
       • If these differences are important enough then the later court may coose to distinguish its case from the previous one and create a new precedent for their particular set of facts. there will then be two different precedents one for each of the two fact situations.

6. ADVANTAGES OF PRECEDENT

   • Creates certainty and consistency as a case will be decided similarly to a previous, comparable case.
     • Flexibility due to the fact that the methods of avoiding following precedent (reversing, overruling, distinguishing disapproving) help prevent the law from becoming to rigid.
       • Encourages efficiency as judges can refer to previous cases when making decisions.
         • Allows judges to create new areas of law in order to uphold the rights of disputing parties before them.
   • DISADVANTAGES OF PRECEDENT
     • Inflexible as a court is bound to follow precedent and may not be able to avoid it, so common law is limited in responding to changes in society.
       • Some uncertainties as no two cases are ever the same.
         • Restricted by having to wait for a case to be brought to court- slow an irregular
           • Complicates the judicial law making process