5- Strengths And Weaknesses Of The Courts Flashcards
List 5 strengths of the courts as lawmakers.
- Courts can make laws quickly
- Courts can interpret and clarify statutes
- Precedent creates consistency
- Courts allow for flexibility
- Courts are independent
Discuss strength #1: courts can make laws quickly.
Courts are able to change laws relatively quickly when the need arises. Unlike parliament, they do not need to go through the lengthy legislative process.
What is the flip to courts making laws quickly?
A court can’t make law on its own, it must wait for the case to come before it to take action. Otherwise, there would be a breach in the separation of powers.
Discuss strength #2: courts can interpret and clarify the law. (provide an example.)
Courts can clarify and fill the gaps in parliamentary legislation, when a new situation arises. This may reflect social or technological changes that parliament hasn’t anticipated.
Eg: In the 1935 Brislan case, the meaning of the words “other like services” was extended to include wireless sets and future forms of communication (Internet and broadband).
What is the flip to the courts developing and clarifying law?
The courts can’t fill all gaps left by parliament- they must wait for a relevant case to come before them.
Also, any actions they do take are ex post facto: meaning after the act occurs. In this way, courts can’t anticipate legal developments.
Discuss strength #3: precedent creates consistency
The courts decisions are generally fair due to binding precedent, which allows consistency across cases with similar facts and circumstances.
This precedent also allows predictability within the system.
What is the flip to precedent creating consistency?
This binding precedent may also create rigidity.
Judges access to precedent may also be difficult. This is because there are many precedents to search through, and they are not arranged by relevance: rather, they are recorded in chronological order.
Discuss strength #4: courts allow for flexibility
The courts prevent law from becoming too rigid, because judges are able to avoid precedent, if necessary. They may do this by reversing, overruling, distinguishing or disapproving precedent.
What is the flip to courts allowing for flexibility?
The frequent occurrence of distinguishing precedents, although preventing rigidity, can also make the system too flexible or inconsistent.
Also makes the system unpredictable.
Discuss strength #5: courts are independent. (provide an example)
Courts are free from political pressure, and are independent from the electoral process. This allows them to legislate on controversial issues, without the fear of backlash.
Eg: The Victorian Supreme Court made a significant contribution to abortion laws in 1969.
What is the flip to courts independence? Provid an example.
Because judges are not elected, they may fail to accurately reflect the wants and needs of society. Also, judges can be conservative and tend to follow old and outdated precedents.
Eg: In the Trigwell case, the judge applied old and outdated precedent, which parliament later changed by passing the Wrongs (Animals Straying on Highways) Act 1984.
