Courts as Law-Makers

Evaluating courts as law-makers

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Courts as Law-Makers

Advantages

  • The Doctrine of Precedent provides consistency, certainty and fairness in regard to court outcomes
  • Common law can be flexible as courts can change laws as society's need arises through distinguishing, reversing and overruling (eg: Mabo)
  • Courts can repair 'holes' in the law left out by parliament (eg: Kevin & Jennifer)
  • If there is a new issue where there is no current law, courts can make new laws/precedents
  • Courts can change the law on controversial issues as they are free from any political pressures, such as fear of voter backlash or influence from pressure groups (eg: Abortion)
  • Courts can respond to the need to change the law very quickly and can promptly make laws when necessary

Disadvantages

  • Common law can be too rigid and slow to change as courts may be bound by previous decisions
  • As they tend to be keen to be consistent and fair, judges generally are conservative with their decisions (eg: Trigwell)
  • Courts can only change the law when a case is brought to them
  • Courts cannot investigate an entire area of law as they change/make law in small, narrow areas that are only relevant to the case which they are deciding upon
  • Courts are not elected bodies and this may result in laws that are inconsistent with society's values (eg: **** in marriage)
  • Law-making can also be slow as courts make laws in reaction to events rather than 'planning ahead'
  • Finding and applying precedents can be time consuming and difficult (eg: R v Evans & Gardner)
  • Appealing to a higher court is very expensive

Evaluation

Courts can be effective law-makers as they can change the law when required and on controversial issues, however they can also be inefficient as they can only make laws when and if cases are brought to them.

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