#6508 - Precedent Legal Change And Judicial Decision Making - Australian Legal Foundations

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? Declaratory Theory * 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 decision making 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.' (Lord Reid) PAGE 43 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 particular parties Application: * 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 Binding o Persuasive o Applied or followed o Over--ruled (rarely happens) o Distinguished 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 PAGE 44