The Role of the Courts

What is Common Law? Common Law is law developed through the courts. Also known as Judge-made law and case law. It is created when a case comes before the courts. It develops through the reasons for decisions of courts being followed by future courts.

Judges’ ability to make law Courts make law by: 1)Deciding on a new issue that is brought before them OR when a previous principal of law requires expansion to apply to a new situation. 2)Statutory Interpretation- Interpreting meaning of words in an act or parliament. The reasons for the decision (ratio decidendi) is the law that is followed by future courts and forms part of the law.

Restrictions on judges’ ability to make law Judges and courts are only able to make laws on the following grounds: 1)When a case comes before the court- Judges can only develop or change the law when a relevant case comes before them. 2)Nature of common law is that higher courts are binding on lower courts in the same hierarchy.

What is the Doctrine of Precedent? One of the most important ways that the legal system achieves fairness is by making sure that like cases are treated alike. For example, imagine a teacher states that there will be no talking during class time, and enforces that rule with all students—except one. Allowing one student to talk while everyone else in the class may not is inconsistent, and unfair, and should not happen. Once a rule is set up, it should be applied to all students. In the same way, it would be grossly unjust if the law about murder was applied to most people, but not all. The doctrine of precedent is simply a system used by courts to make sure that similar cases are dealt with by similar law, in the interests of consistency and fairness. In order to make sure that each case is dealt with fairly (and consistently), courts will look to see if any previous case (that is, a precedent) has dealt with the same fact situation, and will apply that precedent to ensure consistency.

Operation of the doctrine of precedent principle or rule of law that must be followed by other courts lower in the same hierarchy when deciding future cases that are similar. The principle of the doctrine of precedent creates consistency and predictability. When a person takes a case to court they will have some idea of the outcome because like cases are decided in a like manner.

Key Principles Stare decisis- To stand by what has been decided Ratio Decidendi- Reasons for the decision. It is the BINDING PART OF THE JUDGEMENT. The judgement is the statement by the judge at the end of the case outlining the decision and the reasons for the decision. It is regarded as a statement of law to be followed in the future. Not the Sanction or Remedy given. Obiter dictum- A judge’s statement or opinion in a judgment that is not part of the ratio decidendi (precedent) may be used as a persuasive argument in later cases.

Question time Complete questions 1, 2, 4, 5 and 6 on page 199.