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Analyse how the doctrine of precedent affects the ability of the courts to make law. - VCE - SSCE Legal Studies - Question 7 - 2023 - Paper 1
Question 7
Analyse how the doctrine of precedent affects the ability of the courts to make law.
Worked Solution & Example Answer:Analyse how the doctrine of precedent affects the ability of the courts to make law. - VCE - SSCE Legal Studies - Question 7 - 2023 - Paper 1
Step 1
Analysis of the Doctrine of Precedent
Answer
The doctrine of precedent, also known as stare decisis, plays a crucial role in how courts make law. It establishes that decisions made by higher courts must be followed by lower courts in similar cases.
This ensures consistency and predictability in the law, as similar cases are treated similarly. It restricts lower courts from freely making law, as they must adhere to established precedents, thereby limiting their legislative power.
Moreover, the courts are not free to interpret the law according to their preferences. They need to interpret and apply the law as it has been decided in prior cases, particularly those from superior courts, creating a hierarchy whereby higher court decisions guide lower court rulings.
Step 2
Limitations on Law-Making Power
Answer
While courts can indeed create new legal precedents through their judgments, this power is greatly influenced by existing laws and prior decisions. For instance, when faced with novel circumstances where no past cases exist, judges may need to rely heavily on establishing new precedents, but they still operate within an established legal framework.
Furthermore, in the context of the common law system, the evolution of 'judge-made' law is based on previous rulings. This means that while judges may contribute to law-making, their scope is effectively governed by existing principles and legal authorities.
Step 3
Judicial Hierarchy and Precedent
Answer
The judicial hierarchy defines the extent of how precedent affects law-making. Superior courts, such as the High Court of Australia, have a greater capacity to create binding precedents due to their position in the hierarchy. In contrast, lower courts must adhere to the decisions of higher courts, limiting their ability to deviate from established legal principles.
In scenarios where judges in lower courts face similar cases, they are compelled to follow the ratio decidendi of higher court decisions, which are the legal reasons for the judges' decisions. This systematic approach reinforces the principle of consistency in the legal system.