This is an extract of our Precedent Legal Change And Judicial Decision Making document, which we sell as part of our Australian Legal Foundations Notes collection written by the top tier of Griffith University students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Australian Legal Foundations Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
PRECEDENT, LEGAL CHANGE
AND JUDICIAL DECISION MAKING
Role of the Court:
* Regulator of Government power * To uphold the Rule of Law
Legislative a? Legislate a? Execute a? Executive a? Judicial a? Review
Judge Made Law
* Encompasses common law cases
o Much contract and tort law is still found in the common law
o Cases about the meaning of statutes
o Cases about the meaning of the Constitution
SS? ACTV v Commonwealth
How do judges decide cases?
* Traditional Approach
o Declaratory theory
SS? Judge declares pre existing law
o Formalism * Modern approach
o Perceived as much more complex
o "solid core of straightforward implementation of well established
rules and a 'penumbra' of high uncertainty in 'hard cases'" (Hughes,
et al p197)
o What are the limits and methods of decision--making?
* Strict legalism
o Applying the black letter of the law
o No role for a judge's own interpretation of the law or for the
infusion of policy or value choices into the process of judicial
There was a time when it was thought almost indecent to suggest that judges make
law -- they only declare it. Those with a taste for fairy tales seem to have thought
that in some Aladdin's cave there is hidden the common law in all its splendour and
that on a judge's appointment there descends on him knowledge of the magic
words 'open sesame'. Bad decisions are given when the judges muddle their
password and the wrong doors open. But we do not believe in fairytales any more.'
Doctrine of Precedent:
* Stare decisis:
o Let the decision stand
SS? The courts are bound to follow previous decisions of higher
courts within the same hierarchy of courts
SS? Rationale/benefits * Certainty * Equality * Efficiency * Appearance of Justice
SS? Court hierarchies * State/Territory has its own hierarchy * Federal court hierarchy * Ratio Decidendi
o The reason for decising
o The argument or reasoning on which a judge's ultimate decision is
based * Obiter Dicta
o Everything else in a judgement that is not part of the ratio is obiter.
o Things said by judges on points of law which are not crucial to the
final decision * Res Judicata
o A thing adjudicated
o Purpose of using precedent is to finally resolve a dispute between
* How do we find a case's ratio decidendi?
o The easiest way is by asking oneself - what are the key legal issue in
this case? The way the court answers this legal question, and the
reasoning it uses, will be the ratio." (Sanson et al, 2009)
How are Precedents used?
* Precedents can be
o Applied or followed
o Over--ruled (rarely happens)
o Upheld/Reversed * The doctrine of precedent is the prevailing 'constraint' on the role of
judges in determining and developing the common law as it tries to
accommodate the inevitable process of changing values and policies
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