DP9 Factors affecting the ability of courts to make law Flashcards
What are the 4 factors that affect the ability of the courts to make law?
- Doctrine of precedent
- Judicial conservatism and judicial activism
- Costs and time in bringing a case to court
- The requirement of standing
What is the doctrine of precedent?
The principles that the reasons for decisions of higher courts are binding upon lower courts within the same hierarchy, where the material facts of the case are similar. If decisions are not binding, they can be persuasive and can assist a judge in making decisions.
How does the doctrine of precedent enhance the ability of courts to make laws?
By following decisions made by higher courts, it ensures consistency and predictability of decisions in cases. This ensures that cases are decided in like manners. The doctrine of precedent allows courts to clarify the application of ambiguous areas of legislation. Furthermore, the ability to make laws is enhanced, as judges in superior courts can interpret the words of a statute to create a new legal principle and thus create precedent.
How does the doctrine of precedent limit the ability of courts to make laws?
The doctrine of precedent limits the ability for courts to make laws as lower courts must follow the decisions of higher courts. Thus, lower courts are unable to establish their own legal principles or interpret words of legislation differently unless able to distinguish from previous cases. Thus, even if a judge disagrees with a decision, it must be followed. Furthermore, such decisions may not fully reflect community values or be outdated, but still must be followed. Additionally, judges may be reluctant to reverse or overrule earlier decisions due to judicial conservatism, or just a general reluctancy to set precedent. Finally, the courts must wait for a case, and thus cannot make decisions and set precedent id there is no case before them. Thus, making law is highly dependent on costs/time/standing.
What is judicial conservatism?
Refers to where judges are reluctant to engage in law-making and adopt narrow interpretations of statutes, thus limiting the ability of courts to make laws. Such judges often decide cases based solely on legal principles, being cautious of making decisions that lead to significant changes in the law.
Judges may be conservative if decisions may lead to major controversial changes in the law, and thus may be inclined to be conservative in their interpretation of the law. Furthermore, such judges may prefer for parliament to investigate and make law reform, rather than the courts having the role of law-making.
What is judicial activism?
Judicial activism occurs when judges create new areas of law, interpreting laws in a broad way. Such approaches consider a range of social factors when deciding cases. However, judicial activism is sometimes met with criticism, as some people may see law-making as outside the courts’ role, and thus should be left to parliament. This may be because parliament is directly chosen by the people, and the judges are appointed.
How does judicial conservatism affect the ability of the courts to make law?
Judicial conservatism restricts the ability of courts to make law, especially if judges prefer to leave law-making to parliament. Because narrow interpretations are adopted to the statute they are applying, major changes may not be made, and thus stability is maintained in the law rather than establishing new principles. Furthermore, judges may be discouraged from considering a range of social factors when making decisions.
How does judicial activism affect the ability of courts to make law?
The ability of courts to make law is enhanced as judicial activism is used to describe a judge who establishes legal principles that did noytt exist before the decision.
