14.4 Factors that affect the ability of the courts to make law - the doctorine of precedent

Question 1

What are the 5 main factors that affect the ability of courts to make law?

Answer 1

• doctorine of precedent
• judicial conservatism
• judicial activism
• cost and time in bringing a case to court
• the requirement for standing

Question 2

How does the doctrine of precedent allow for consistency?

Answer 2

• like cases are decided in a like manner
• legal representatives are able to give advice on the likely outcome of the case
• judges have some protection and guidance when making decisions
• decisions made by more experienced judges are followed
• the same point is not being decided over and over

Question 3

What are the limitations of precedent?

Answer 3

• Looking at past precedent may be time-consuming and costly
• it may be hard to find the legal reasoning behind a decision

Question 4

How does the doctrine of precedent allow for flexibility

Answer 4

Courts can overrule and reverse precedents and lower courts can avoid them thorugh distinguishing material facts

Question 5

How does the doctrine of precedent limit the ability of the courts to make law?

Answer 5

• lower courts MUST follow binding precedent
• the process of identifying the relevant precedent can be time-consuming and costly
• judges may be reluctant to change existing precedent
• Judges can only interpret legislation when an appropriate case is being brought forward to a superior court
  Courts can only clarify the meaning of legislation after a dispute over its meaning has arisen