|Name |Robert Hooper | |Unit Code |BLW16 | |Study Period |Period 3 (2006) | |Subject |Introduction to Law | |OUA Student ID | | |Unit Coordinator |Jim Thomson | |Word Count |1039 | Assignment 1: Essay (value 15%)
In theory the doctrine of binding precedent means that judges declare what the existing law is. However many people think that judges actually make law, especially in the High Court of Australia.
Write an essay of 1000 words stating whether you believe judges should make law and mention some arguments for and some arguments against this idea.
I am of the opinion that judges in Australian courts should make law, within specified boundaries. Through the doctrine of precedent, the decisions that judges make in cases before them, form a body of law known as unenacted or judge-made law. The ratio decidendi or the reasons for the judge’s decision form a binding precedent that will direct the decisions of lower courts in the same hierarchy, and guide other courts (Graw, 2005). This body of law, known as decisional law, makes up a large part of law as it stands. However, there are limits on the ability of judges to create laws. Also there are valid arguments for and against the act of judges making law.
One of the key arguments in favour of judges being able to make law through setting precedent is that law needs to represent the beliefs, values and needs of society as a whole (Graw, 2005). It would be difficult for statute law to cover every contingency that the court may face; especially considering that between 1995 and 2004 an overage of only 159 Bills received assent each year (Chamber Research Office, 2004). Judges take existing law and interpret and apply it to cases before them in a fair and non-arbitrary manner (Thomson & Sarre, 2006). This then creates further precedent, constantly adding to the body of judge-made law. In this manner, law can more closely represent the needs of society, allowing for outdated law to be updated and modified to suit current circumstances (Thomson & Sarre, 2006). Another advantage of following the doctrine of precedent is that it ensures that everyone facing the court at a given level, no matter what judge they appear before, will be facing the same law.
Another point in favour of judges making law is that the power of judges is not unlimited, the doctrine of parliamentary sovereignty, holds the power of the judges in check (Alderson, 2005). Under this doctrine, the parliament is the supreme law making body within its jurisdictional boundaries, and whenever a conflict exists between judge-made law and legislation, the legislation will prevail. The courts cannot overturn, or modify this body of law, except in certain circumstances (Alderson, 2005). The High Court of Australia has the power to determine whether parliament has acted within its constitutional boundaries, and if it is determined to have exceeded these boundaries the High Court can overturn the legislation (Thomson & Sarre, 2006). This point also highlights the importance of the doctrine of the separation of powers.
The doctrine of the separation of powers holds that the three arms of government,...