ESSAY PLANS

Table of Contents

Rule of Law 2

Precedent 4

Separation of Powers 6

Professional Responsibility and Identity 7

Equity and Common Law 9

Judicial Decision Making 12

Answering Intentional Torts Problem 15

Answering Statutory Interpretation Question 16

Rule of Law

• Basic principles of the Rule of Law

  • All people are subject to the law

  • Sets boundaries on how people and government can operate

    • Attorney General (NSW) v Trethowan (1931) {p.200}

  • Prevents arbitrary use of power

  • Legal authorization needed for executive action

  • No source of authority outside law

    • We know we have the rule of law because we settle disputes with words rather than violence. Yet, arguments that are arisen out of the context of the rule of law have ended in death

  • Prohibitions to be specific rather than general

  • Law should be prospective, not retrospective

  • Predictability: law is known and accessible

    • Judicial activism? We rely on judges to help outline what the law is in simple terms, yet they become bias to their personal beliefs, therefore one can assume that their definitions and understandings are not necessarily inline with the parliamentary intention of the law

  • Freedom from arbitrary arrest

  • Independent and trustworthy

• Lawyers and the rule of law

  • Restrains their arbitrary use of power

  • EG: Lawyers movement in Pakistan {p.428}

    • After protests following the horrendous ruling of General Perves Musharraf, a military dictator, judges and lawyers were being dismissed from their positions in society in attempt to silence. In the end, the uproar calmed and it was evident that the government cannot interfere with the independence of the judiciary. This is a primary example of the operation of the rule of law in protecting against arbitrary use of power.

    • ‘The Pakistan Lawyers’ Movement and the Popular Currency of Judicial Power’ (2010) 123 Harvard Law Review 1705

  • EG: People who died protecting some element of the rule of law; Mahatma Gandhi, Sir Thomas More, Giovanni Falcone

  • EG: Giovanni Falcone

    • Prosecutor against the mafia, spent most of working life fighting to stop the mafia. Began working as a magistrate who strived to end the uproar that was the lifestyle of the mafia

    • Named a hero of the past 60 years in a special edition of Time Magazine in November 2006

• Judges and the Rule of law – Judicial Activism

  • Heydon description of the rule of law {‘Judicial Activism and the Death of the Rule of Law’ (2004) Dyson Heydon}

    • The rule of law prevents citizens from being exposed to the uncontrolled decisions of others in conflict with them

    • Without the rule of law, states are nothing but robber bands

    • Operates as a bar of untrammeled discretionary power

    • Preserves citizens an area of liberty

    • Dilutes and diffuses power

    • All parties are intrinsically important yet unequal in strength

  • Heydon’s understanding of judicial activism

    • Using judicial power for a purpose other than what it is granted

    • “Strict logic and high technique”

    • A court faced with the choice of doing justice according to the existing law and seeking to overcome injustice by effecting a significant change in the law should generally apply the existing law and leave it to parliament to make a new and just law if it desires

    • Judicial law making conflicts with legislative policy and intrudes the true role of arms of government – conflicting separation of powers

    • Loyalty to precedent is important because it increases the chance of obtaining certainty

    • Disloyalty to precedent gives judges uncontrolled discretionary power

Precedent

• Precedent in upholding the rule of law – judicial activism debate

  • Heydon’s understanding of judicial activism

    • Using judicial power for a purpose other than what it is granted

    • “Strict logic and high technique”

    • A court faced with the choice of doing justice according to the existing law and seeking to overcome injustice by effecting a significant change in the law should generally apply the existing law and leave it to parliament to make a new and just law if it desires

    • Judicial law making conflicts with legislative policy and intrudes the true role of arms of government – conflicting separation of powers

    • Loyalty to precedent is important because it increases the chance of obtaining certainty

    • Disloyalty to precedent gives judges uncontrolled discretionary power

  • Kirby’s arguments for judicial activism {Judicial activism? A riposte to the counter-reformation (2005)}

    • Judicial activism is hardly a persuasive response to an important and universal feature of the judicial role

      • Judges have a duty to be honest about choices and one they prefer one over another

    • Judicial activism

      • Metaphorical treason against the constitution

      • Relates back to citizens – it concerns the way “their” law is made

• Precedent and upholding the rule of law

  • For precedent

    • Equality and consistency

    • Certainty and predictability

      • Judicial activism

    • Efficiency

  • Against precedent

    • How does a doctrine, which is meant to ensure consistency and predictability, also allow for change?

      • Abiding by the social context of a problem

      • Predictability shouldn’t be of the outcome, it should be in predicting a reflection of societial context

      • The tools of precedent must be used to determine an outcome that develops something new

    • The role of the judge is to interpret legislation – however they see fit

• Precedent and Negligence

  • Cases of negligence:

    • Donoghue V Stevenson

      • Found snail in ginger beer

    • Langridge v Levy (1837)

      • Father buys a gun for his son, when the son goes to use the gun it is faulty because it was not made by they professional gun maker that it claimed to be made by

      • Although the father gifted then gun to the son, the son sues the gun maker for negligence in gun making

    • Winterbottom v Wright (1842)

      • The defendant provided a coach to the plaintiff – through 2 other contracts with others including coachmen and horses – who was injured in a crash caused by the faulty coach

    • George v Skivingotn (1896)

      • The defendant...

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