3.3.5 Strengths and Weaknesses of Law-Making through the Courts

Question 1

Strength 1:

Answer 1

A decision must be made

Question 2

A decision must be made:

Answer 2

Courts must settle disputes that come before them. Therefore courts provide an immediate response to what the law should be in relation to a particular issue

Question 3

Weakness 1:

Answer 3

A case must come before the court.

Question 4

A case must come before the court:

Answer 4

Courts cannot determine what the law is unless a case is brought before them. Courts cannot comprehensively research, review and make sweeping changes to the law.

Question 5

Strength 2:

Answer 5

Flexibility

Question 6

Flexibility:

Answer 6

Courts have some flexibility in avoiding or developing precedent through RODD.

Question 7

Weakness 2:

Answer 7

Rigidity

Question 8

Rigidity:

Answer 8

Courts may be bound by old precedent, which could lead to unjust results. Unless a court is considering a novel situation, it must follow an existing precedent. The methods of avoiding precedent are limited in nature. Disapproving doesn’t change precedent. Overruling is only available to higher courts.

Question 9

Strength 3:

Answer 9

Consistency

Question 10

Consistency:

Answer 10

The Doctrine of Precedent allows some levels of consistency in decision-making. Similar cases with similar facts need to follow precedents in higher courts, enabling fairness and predictability.

Question 11

Weakness 3:

Answer 11

Uncertainty

Question 12

Uncertainty:

Answer 12

Where the law is unclear, parties may not know how the law will be applied until after a dispute arises and is resolved by the courts.

Question 13

Strength 4:

Answer 13

Ultra Vires

Question 14

Weakness 4:

Answer 14

Abrogation