OS

KKDP: 9 Factors that affect the ability of the courts to make law

Doctrine of Precedent

Key definitions

Locus Standi

  • straight latin translation is “place to stand”

  • is standing basically

  • a party must be directly affected by an issue to take legal action

Judicial Activism

  • judges taking a range of values into account when deciding a case (political values, social values)

Special Interest (standing)

  • when challenging the cmwlth law in conserv the high court, the party affected must prove they are more impacted than a regular citizen

Ex post facto

  • straight latin translation is “out of the aftermath”

  • limits the courts ability to wait for a case to be brought before them

the ability for courts to make laws using relevant precedents

Strengths

  • precedents allow for consistency in the law

  • judges can overule/reverse which enables the law to be flexible.

  • they can distinguish if they believe teh material facts are different to the case they are hearing

  • courts can disapprove of precedents which pressures gov or sup courts

  • precedents/ common law allow gaps in legislation to be filled by the courts

  • occasions that parliament does not act on a certain issue they believe to be too controversial, leads to lost votes in election.

Weaknesses

  • lower courts must follow binding precedents (even if they do not agree)

  • judges in sup courts may be reluctant to overule existing precedents made in lower courts or not to follow precedents made in the same courts. may prefer parliament to do this

  • sup courts can only make precedents when a case is brought before them and a loss has already happened

Judicial Conservatism & Judicial Activism

Judicial Conservatism

  • judges taking a ‘narrow interpretation’ of a law. (doesnt take societies values into account)

S&W of Judicial conservatism

Strengths

  • judges are aware they are not democratically elected and prefer parliament to make law

  • can reduce appeals

  • parliament as teh soverign law maker can excersise its primary role

  • allow for stability when laws are applied

Weaknesses

  • some claim if cases are broughtto courts, then the judges should consider social and political factors, especially if the parties may be impacted by a conservative judgement

reduces the courts ability to make major and controversial changes, especially if parliament is hesitant to change certain laws due to voter backlash

Judicial Activism

  • judges taking a range of values into account when deciding a case (political values, social values)

S&W of Judicial Activism

Strengths

  • judges can consider a range of poltical and social factors when they practice

  • judges can uphold rights of the people

  • judges can make law in areas that parliament may be hesitant to (due to controversial)

Weaknesses

  • The ‘radical changes’ that could be made may not reflect societies values

  • there may be more appeals due to question of law

  • judges can only ‘progressive’ if a case if brought before them

  • parliament can abrogate any law made by court (except for constitutional issues)

Costs and Time

Costs

  • legal rep, court fees, filing fees, expert witness fees (aka disbursments)

Time

  • gathering evidence, expert witnesses, backlog of cases, pre trail procedures, complexity of a case, judgement can take a long time

The Requirement for standing

S&W of Standing requirements

Strengths

  • This requirement reduces backlogs and delays as only ppl who are genuienly impacted by an issues can take legal action

  • The requirement of a standing (special interest) provides parties with an intellectual interest in a case but are not impacted by the law, the ability to peruse other means of law reform such as: lobbying politicians, protests, petitions etc.

Weaknesses

  • requirement may reduce ppl acting for the ‘good of society’

  • may reduce cases being herae and laws being changed. relevant in cases where minority groups are those who have a standing such as: prisoners or refugees