Why Should Judges Be Allowed To Make Case Law

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Case law is an area of law developed by the courts while hearing and determining disputes.[ Federal Court of Australia - Glossary of legal terms. ] Judges make the decisions when to make case law, if they see it is needed in a dispute. However there are arguments that judges should / shouldn’t be allowed to make case law. There are three stages that occur when judges make case law; the pre-trial stage, the trial stage, and the post-trial stage. In the pre-trial stage both parties exchange evidence and opinions on law at the pleadings and pre-trial conferences.[ Legal Studies Key Ideas Text Book - Geof Bailey - Page 219] During these pre-trial conferences the judge has a copy of a book, that includes questions on law, facts of law, and knowledge…show more content…
There are two arguments attached to this question; yes or no. For the yes argument there are four points that should be considered when deciding whether or not judges should make law. These include; the resolution of legal disputes and parliamentary scrutiny, statutory interpretation, doctrine of precedent, and judicial independence and judicial review. The resolution of legal disputes and parliamentary scrutiny allows for judges to make case law to resolve legal disputes,so that people’s rights may be protected. As parliament is unable to identify all of of the possibilities of legal disputes in society, they allow for judges to make case law, allowing for legal disputes to be finally resolved. Statutory Interpretation helps judges make case law, for although parliament is the sovereign law-maker, statutes must have precise meanings for all words and phrases used, so that no injustice occurs. By giving judges judicial power to create case law when interpreting statutes, it means that no injustices occur. When judges make case law, the doctrine of precedent allows for that case law to be consistently applied to all courts, especially when a superior court makes a precedent. By consistently applying case laws, it brings certainty and predictability to case law, giving the community the confidence that case law is being applied to all courts in a uniform manner. By allowing for judges…show more content…
Despite the doctrine of precedent showing strengths as to why judges should make case law, there is a weakness. If judges show a rigid adherence towards the doctrine, and act conservatively when a case shows evidence that they should depart from the precedent, injustices occur. As judges have been appointed to the bench, it means that they are not directly accountable to the community for the decisions they make,[ Legal Studies Key Ideas Text Book - Geof Bailey - Page 246] and as such any case law they make is not in accordance with democratic principles, allowing for undemocratic law-making. Inequitable law-making is where the decision to make case law falls to the parties involved in the dispute, and as some of the most powerful sections of the community tend to use the courts to protect their rights[ Legal Studies Key Ideas Text Book - Geof Bailey - Page 246], the argument is that case law is favouring one section of the community. Judges are also only allowed to make case law after an event has already happened, and when one of the parties bring the dispute to court for it to be resolved. This means that defendants could eventually be asked to remedy consequences of their conduct[ Legal Studies Key Ideas Text Book - Geof Bailey - Page 246] that may not have been unlawful at the time of the

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