Law Notes > LAWS1052 - Introduction to Law and Justice (ILJ) Notes
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ESSAY PLANS
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
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 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 bought shampoo for his wife, the plaintiff
Applied LvL by substituting the word ‘negligence’ for ‘fraud’ and the analogy is complete
Heaven v Pender (1883)
Heaven is harmed whilst working on a dock due to the fault in Penders ropes that he leant to the shipowner Gray
Duty of care of supplier
Law reflecting changing common sense
Precedent has been developed in these cases of negligence to uphold the purposes of precedent
Precedent and Change – Statutory Interpretation – Efficiency
Royal College of Nursing of the Untied Kingdom v Department of Health and Social Security
Facts
The abortion act 1967 stated that no offence was committed if the abortion was carried out by a registered medical practitioner
Although when the method for terminating changed from surgical to chemical intervention, this could be completed by a nurse
Therefore the department of health and social security stated that no offence was committed if this was carried out by nurses
The royal college of nursing disputed this
This case highlight beyond precedent, the importance of statutory interpretation in understanding the meaning of words provided by parliaments. The role of judges is to outline an understanding of the law, although in most contexts, this is difficult. This case is a primary example of having to understand the parliamentary intention to properly interpret the statute. Precedent is then considered to ensure the first interpretation of the statute will be acceptable for other interpretation of the statute. (See: Southwark London Borough Council v Williams)
There are dangers in creating a ratio decidendi for a particular case that may have a legal standpoint in a case to come. Judges must use their discretion to seek a solution that will benefit or be just for all parties and the community.
SOUTHWARK LONDON BOROUGH COUNCIL V WILLIAMS
The defendants were a homeless family, they squatted in empty houses
One of the grounds relied on by the defendant was that they only acted out of necessity
The judgment outlined, although necessity could be invoked for initial entry into the premises, this can not be withheld to authorize for an indefinite period of time
‘Don’t allow people to choose which laws apply to them’ – Gleeson in Rogers
If it is necessary for them, then it become necessary for everyone
Judicial Activism and the Separation of Powers
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
Failure to ensure separation of power
Kable v Director of Public Prosecutions (NSW) (1997) {p.227}
Facts: The courts implemented an act to ensure preventative detention of Kable, specifically. Kable appealed on the grounds of unlawful conduct by the courts and arbitrary abuse of power.
Professional identity of Lawyers
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
The importance of lawyers understanding their professional identity helps to maintain the rule of law and maintain a professional legal system. Most lawyers go to law school, which is expensive and time consuming to at the end be accused of “selling your soul”. The people who make it through law school are extremely proud and feel a sense of commitment to make a change, hopefully for the better. Many lawyers have taken this change and expelled it in the form of literally dying for the trade.
The uproar of Kim Kardashian practicing law it has become anyone’s game
Vogue interview: In an interview about what her apprenticeship involved Kim states, “to me, torts is the most confusing, contracts is the most boring, and crim law I can do in my sleep. Took my first test, I got 100, super easy for me.”
The importance of people who are proud of their profession whilst also understanding the importance of it and not being bombarded in the difficulty
Hal Wooten’s (founder of UNSW Law) understanding of law school graduates: “care about the rule of law, integrity in public office, justice, fairness, equality, liberty, and about protection of the vulnerable”. {Hal Wooten, "Living Greatly In The Law" (2008) 31(1)UNSW Law Journal.}
Professional Identity of Judges
Judicial decision making
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...
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