how precedent affects the ability to make law

how precedent affects the ability to make law

• doctrine of precedent

• judicial conservatism/activism

• cost and time of bring a case to court

• the requirement for standing

consistency and predictability

the DofC has some limitations, such as:

• the difficulty and cost involved in locating relevant precedents

• the difficulty in identifying the legal reasoning behind a decision

• the difficulty in predicting future developments

flexibility

through reversing and so on, precedents allow for flexibility. however it is limited in that:

• it restricts the ability of lower courts to change the law in cases where they are bound to follow a previous precedent established by a higher court

• judges in superior courts may be reluctant to reverse or overrule existing precedents

• while not being technically bound by there own courts decisions, judges in courts of the same standing consider these precedents to be highly persuasive.

other ways it limits courts making law

• judges have to wait for a relevant case to be brought to them in order for common law to be changed. This relies on the organisation of parties, and an awareness they can bring things to court

• superior courts can only make law that is needed to clarify something

• judges can only make laws retrospectively

• parliament can legislate to obragate common law

judicial conservatism

an expression used when judges adopt a narrow interpretation of the law when interpreting AofP and deciding cases. It refers to the idea that courts should show restraint or caution when making decisions or rulings that could lead to significant changes in the law, and not base it on their views or political opinions.

why is conservatism used

parliament can investigate the needs and views of the people, and engage with specialist bodies, whereas courts are limited to examining the resources available to the courts.

judicial activism

an expression used when judges consider a rang of social and political factors when interpreting acts of parliament in deciding cases. It includes the judges willingness to consider a range of social and political factors, including community views and and values.

costs of taking a case to court

• legal representation - parties generally need to engage legal representation to ensure their case is prepared and presented in the best possible manner

• court fees - includes filling fees, hearing fees, and jury costs.

time involved in bringing a case to court

• Significantly quicker to create law than in parliament, as there is not extensive drafting and passing bills through the houses.

• appeals can take months to resolve

standing

the requirement that a party must be directly affected by the issues or matters involved in a case for the court to be able to hear and determine it.

This is particularly relevant in the High Court, as the person must have ‘special interest’ meaning they are more affected by the law than other members of the public.

this ensure the courts time are used effectively.