ATAR Notes: Forum
VCE Stuff => VCE Business Studies => VCE Subjects + Help => VCE Legal Studies => Topic started by: Pencil on November 06, 2007, 04:01:03 pm
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Just wondering how much detail are yous learning for this area, as in are you learning changes/suggested changes for all of the problems (financial barriers, delays, cultural differences, social differences) or just a few in good detail? gah I can't be bothered
Also while I'm here, another dotpoint is 'problems in criminal and civil procedure and the purpose of possible solutions' do you reckon we can use some of the same things? I know it's a bit different because it is more about the procedures than access, but I think some, like delays, are common to both?
hm yeah so basically I'm just procrastinating haha
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Its pretty common sense stuff. That kind of stuff. Like financial barriers, difficulties with English etc. Just make sure you know how to explain them in enough level of detail and don't just presume that saying gaining access to the law isn't equitable will give you full marks. Don't worry about learning in heaps of detail though.
For your second thing. Yes. lol
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wow is this part of legal studies, i haven't learnt this before in law
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hey brendan, I have a question.
In talking about the weaknesses of courts as law-makers, I plan on saying that judges are not elected, and are typically drawn from a narrow socio-economic group (although this is changing) and they therefore may not reflect community values. Cases such as the R v. Johns (1992) 'rape in marriage' case have caused community outrage and raised doubts as to whether judges are in touch with community views.
Now, I'm unsure as to whether the judge in this case actually did set a precedent? and thought you might know. It's just that if they did, I'll be able to say 'this case raised doubts as to whether judges should be involved in law-making' rather than 'this case raised doubts as to the degree that judges are in touch with community views, which may in turn affect their ability to make laws for the community'. Haha I could probably say both, but I was just wondering.
I probably could google it haha
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i have a pretty strong view on judicial activism and i condemn it, in all its forms.
do not ever say that the courts are supposed to be engaged in 'making law' - that is not their function.
As Judge Learned Hand said in his dissenting opinion in United States v Shaughnessy (1952) 195 F 2d 964 at 971 (2nd Cir): ??Think what one may of a statute ... when passed by a society which professes to put its faith in [freedom], a court has no warrant for refusing to enforce it. If that society chooses to flinch when its principles are put to the test, courts are not set up to give it derring-do.??
This is reminiscent of the more remarks of Oliver Wendell Holmes, in advocating judicial restraint, ?If my fellow citizens want to go to hell I will help them. It?s my job? (Letter to Harold Laski; 4/3/1920; M Howe (ed) Holmes-Laski Letters (1953) vol 1, 249)
[b]Chief Justice Murray Gleeson, "Courts and the Rule of Law", The Rule of Law Series, The University of Melbourne, 7 November, 2001[/b]
It is unfortunate that the process by which judges, usually judges of courts of appeal, develop and refine the common law, is often described as "making law" in a manner that implies that the process is legislative. The judicial method is, or ought to be, different from the legislative method (See The Hon. M. H. McHugh, The Judicial Method (1999) 73 ALJ 37). In Breen v Williams (1996) 186 CLR 71 at 115, Gaudron and McHugh JJ said:
"Advances in the common law must begin from a baseline of accepted principle and proceed by conventional methods of legal reasoning. Judges have no authority to invent legal doctrine that distorts or does not extend or modify accepted legal rules and principles."
Here are some exerpts from [b]Justice John Dyson Heydon, "Judicial Activism and the Death of the Rule of Law" [2004] [i]OtaLRev 2[/i] [/b] with a few points i added in as well:
Judicial activism tends to the destruction of the rule of law.
The force of the law depends of the capacity of the legal system to command of the consent of the people.
If judicial opinions are in a constant state of flux, swinging back and forth, one cannot expect the law to remain reasonably stable. Uncertainty in the law will result. What one court may plausibly see as an immediate gain to justice in the particular case may have unintended consequences of a harmful kind, and one of those consequences may be to erode the ability of the public to place confidence in the law and hance capacity of the law to command the people?s obedience.
Meaning of Judicial Activism
The expression ?judicial activism? is here used to mean using judicial power for a purpose other than that for which it was granted, namely doing justice according to law in the particular case. It means serving some function other than what is necessary for the decision of the particular dispute between the parties. Often the illegitimate function is the furthering of some political, moral or social programme: the law is seen not as the touchstone by which the case in hand is to be decided, but as a possible starting point or catalyst for developing a new system to solve a range of other cases. Even more commonly the function is a discursive and indecisive meander through various fields of learning for its own sake.
Courts can change the law
The common law is not frozen and immobile, change in the law is entirely legitimate. When new cases arise, existing principles can be extended to deal with them, or limited if their application to the new cases was unsatisfactory. As business or technical conditions changed, the law could be moulded to meet them. As inconveniences came to light, they could be overcome by modifications. The changes could be effected by analogical reasoning, or incremental growth in existing rules, or a rational extension of existing rules to new instances not foreseen when the existing rule was first developed. Particular rules might be modified by the detection of more general principles underlying them or a more rigorous reformulation of some traditional concept.
Even though courts are free to depart from their earlier decisions or the earlier decisions of lower courts, they should not lightly overturn established precedents. The law in general should only be changed by a process of gradual development, not by violent new advances or retreats or revolutions or ruptures.
The Court is neither a legislature nor a law reform agency
State Government Insurance Commission v Trigwell (1979) 142 CLR 617 at 633, the once cautious, Mason J said: ?I do not doubt that there are some cases in which an ultimate court of appeal can and should vary or modify what has been thought to be a settled rule or principle of the common law on the ground that it is ill-adapted to modern circumstances. If it should emerge that a specific common law rule was based on the existence of particular conditions or circumstances, whether social or economic, and that they have undergone a radical change, then in a simple or clear case the court may be justified in moulding the rule to meet the new conditions and circumstances.
But there are very powerful reasons why the court should be reluctant to engage in such an exercise. The court is neither a legislature nor a law reform agency. Its responsibility is to decide cases by applying the law to the facts as found. The court's facilities, techniques and procedures are adapted to that responsibility; they are not adapted to legislative functions or to law reform activities. The court does not, and cannot, carry out investigations or enquiries with a view to ascertaining whether particular common law rules are working well, whether they are adjusted to the needs of the community and whether they command popular assent. Nor can the court call for, and examine, submissions from groups and individuals who may be vitally interested in the making of changes to the law. In short, the court cannot, and does not, engage in the wide-ranging inquiries and assessments which are made by governments and law reform agencies as a desirable, if not essential, preliminary to the enactment of legislation by an elected legislature.?
Judges not equipped to ?make law?
Leaving aside the legitimate role of appellate courts in changing the law by a process of development and adaptation, the conscious making of new law by radical judicial destruction of the old rests on a confusion of function. Those who staff courts do not have that function. They lack the experience to perform it; they lack the assistance required to perform it; they can only do it retrospectively; it is not easy for them to do it clearly; it is not easy for them to do it decisively; and it is not possible for them to balance the financial and other effects of the changes against other demands.
In Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 262, Fullagar J said: ?If the language of an Act of Parliament is clear, its merits and demerits are alike beside the point. It is the law, and that is all.?
Judges swear to apply the existing laws and usages, not to unsettle them by critical debates about them and speculations about their future, and certainly not to create new laws and usages. It is legislatures which create new laws. Judges are appointed to administer the law, not elected to make it or undermine it.
Community values or judge?s values?
When judges detect particular community values, whether in the Australian community or the ?international community?, as supporting their reasoning, they may sometimes become confused between the values which they think the community actually holds and the values which they think the community should hold. This suggests that the judiciary are in truth applying the values which they hold, and which they think the people ought to hold even though they do not. The trouble is that persons adhering to different values or different perceptions of need or different aspirations tend to be at risk of being ruthlessly waved out of all decent society as enemies of the people.
Politicians job not judge?s job to make law
Radical legal change is best effected by professional politicians who have a lifetime's experience of assessing the will of the people, who have been seasoned by much robust public debate and private haggling, who have all the resources of the executive and the legislature to assist, who can deal with mischiefs on a general and planned basis prospectively, not a sporadic and arbitrary basis retrospectively, and who can ensure that any changes made are consistent with overall public policy and public institutions. Professional politicians may not be an ideal class, but that is their job, and they are better fitted than the courts to make radical legal changes.
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Oh and do not use the argument that judges are from "a narrow socio-economic group (although this is changing)". I do not think of it as a strong argument as one could say that politicians are also drawn from "a narrow socio-economic group (although this is changing)" .
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Oh and do not use the argument that judges are from "a narrow socio-economic group (although this is changing)". I do not think of it as a strong argument as one could say that politicians are also drawn from "a narrow socio-economic group (although this is changing)" .
haha ok that one was from my textbook.
Thanks for all the info, very interesting.
Just to check with the trigwell case, I see it says it was 1979, and I've been saying all along that it was 1978 because that is what my textbook says also. So is it 1979? (just so I don't write it wrong on the exam)
We often get questions along the lines 'There is no need for courts to make the law. Parliament's do that job well enough' I've generally been arguing that whilst parliaments are very effective in their role, judges do make a valuable contribution. I suppose you would agree fully with the question then?
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Because the question talks about "making laws". What laws? Constitutional law? The common law? I would say that judges have a role in changing or developing the common law gradually, not "making laws". Furthermore, if you say that you would have Chief Justice Gleeson, and Justice Heydon on your side.
the hearing for trigwell was in 78 but the judgment has handed down in 79
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Also I see you've used the Trigwell case as an argument that courts shouldn't be involved in law-making. But don't you think that in this case, because the judge was conservative, this led to an unjust result? And sometimes it's necessary for judges to fill gaps left in legislation to ensure justice for the parties?
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Because the question talks about "making laws". What laws? Constitutional law? The common law? I would say that judges have a role in changing or developing the common law gradually, not "making laws". Furthermore, if you say that you would have Chief Justice Gleeson, and Justice Heydon on your side.
Well that was an examination question. I guess laws in general :?
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Also I see you've used the Trigwell case as an argument that courts shouldn't be involved in law-making. But don't you think that in this case, because the judge was conservative, this led to an unjust result? And sometimes it's necessary for judges to fill gaps left in legislation to ensure justice for the parties?
Then that's a problem for the Parliament not for the judiciary.
"Courts inflict great pain and distress on those who lose litigation and on those adversely affected by principles laid down in litigation. The public will put up with pain of that kind which is caused by parliamentary legislation ? not always, but most of the time. The public will also put up with a great deal of the pain caused by litigation if it is seen to be the result of long-established rules which could be, but have not been, changed by parliamentary legislation. It is much less easy for the public to put up with the pain if it is caused by the world view of one judge, or a bare majority of appellate judges; or if the courts are in discord; or if judicial opinions are in a state of constant flux as they swing back and forth or spiral down in sickening fashion. What one court may plausibly see as an immediate gain to justice in the particular case may have unintended consequences of a harmful kind, and one of those consequences may be to erode the ability of the public to place confidence in the law and hence the capacity of the law to command obedience." Justice John Dyson Heydon, "Judicial Activism and the Death of the Rule of Law" [2004] OtaLRev 2
As Judge Learned Hand said in his dissenting opinion in United States v Shaughnessy (1952) 195 F 2d 964 at 971 (2nd Cir): ??Think what one may of a statute ... when passed by a society which professes to put its faith in [freedom], a court has no warrant for refusing to enforce it. If that society chooses to flinch when its principles are put to the test, courts are not set up to give it derring-do.??
Oliver Wendell Holmes, former Justice of the Supreme Court of the United States, in advocating judicial restraint, ?If my fellow citizens want to go to hell I will help them. It?s my job? (Letter to Harold Laski; 4/3/1920; M Howe (ed) Holmes-Laski Letters (1953) vol 1, 249)
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Well that was an examination question. I guess laws in general :?
The same fundamental principles apply by former Justice of the High Court, Justice McHugh, said that he was pretty legalistic when it came to statutes and the Constitution, but less so when it came to the common law.
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Oliver Wendell Holmes, former Justice of the Supreme Court of the United States, in advocating judicial restraint, ?If my fellow citizens want to go to hell I will help them. It?s my job? (Letter to Harold Laski; 4/3/1920; M Howe (ed) Holmes-Laski Letters (1953) vol 1, 249)
Ha that's funny
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In an interview Sir Ronald Wilson undertook in 1997 in the light of Bringing Them Home, he was asked whether he would have taken a different approach to adjudication if he were to return to the High Court today. He responded: "I don't think that I would, but because my dominant feeling on the bench is that I have sworn to 'do justice according to law'. And it's that 'according to law' that makes it so damned difficult... the two decisions that I would not wish to confront again was the Koowarta decision and secondly Mabo #1. I wrestled for ages with Mabo #1 and I still can't read section 10 of the Racial Discrimination Act in such a way as to find that it applies and so I dissented. Mind you, I wasn't alone. It was 4:3. So two other minds of some eminence reasoned along same lines, but I was longing to find with the majority. So you've posed a conundrum and frankly my only defence is that I gave it my best shot in these two cases but was compelled by my legal reasoning the way I did. It was a great honour to serve on the High Court but I can't say it was the highlight of my professional career. It was damned hard work". (From Julian Morrow, "Interview with a Commissioner", Blackacre (1997) 27, 29).
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1 or 2?
I would not disagree to the extent that they were ridding the common law of obvious falsehoods such as terra nullius. However, i would have much rather preferred legal change to be effected through the legislature.
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Then that's a problem for the Parliament not for the judiciary.
true, but it's impossible for parliament to cover all situations that arise, don't courts need to be able to make a decision in these cases? (or is this what you mean by developing the common law, which you agree with?)
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true, but it's impossible for parliament to cover all situations that arise, don't courts need to be able to make a decision in these cases? (or is this what you mean by developing the common law, which you agree with?)
yes. the problem you described is a problem for the parliament not the courts. judges are simply not in a position to do the things i think you are suggesting they ought to do.
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1 or 2?
I would not disagree to the extent that they were ridding the common law of obvious falsehoods such as terra nullius. However, i would have much rather preferred legal change to be effected through the legislature.
Yeah terra nullius was just ridiculous. I guess then there's the argument that because the courts are independant, they are able to make laws in areas such as aboriginal land rights without fear of an electoral backlash.
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1 or 2?
I would not disagree to the extent that they were ridding the common law of obvious falsehoods such as terra nullius. However, i would have much rather preferred legal change to be effected through the legislature.
Yeah terra nullius was just ridiculous. I guess then there's the argument that because the courts are independant, they are able to make laws in areas such as aboriginal land rights without fear of an electoral backlash.
again, i wouldn't say they "make law" - they change and develop the law.
[b]Chief Justice Murray Gleeson, "Courts and the Rule of Law", The Rule of Law Series, The University of Melbourne, 7 November, 2001[/b]
It is unfortunate that the process by which judges, usually judges of courts of appeal, develop and refine the common law, is often described as "making law" in a manner that implies that the process is legislative. The judicial method is, or ought to be, different from the legislative method (See The Hon. M. H. McHugh, The Judicial Method (1999) 73 ALJ 37). In Breen v Williams (1996) 186 CLR 71 at 115, Gaudron and McHugh JJ said:
"Advances in the common law must begin from a baseline of accepted principle and proceed by conventional methods of legal reasoning. Judges have no authority to invent legal doctrine that distorts or does not extend or modify accepted legal rules and principles."
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again, i wouldn't say they "make law" - they change and develop the law.
[b]Chief Justice Murray Gleeson, "Courts and the Rule of Law", The Rule of Law Series, The University of Melbourne, 7 November, 2001[/b]
It is unfortunate that the process by which judges, usually judges of courts of appeal, develop and refine the common law, is often described as "making law" in a manner that implies that the process is legislative. The judicial method is, or ought to be, different from the legislative method (See The Hon. M. H. McHugh, The Judicial Method (1999) 73 ALJ 37). In Breen v Williams (1996) 186 CLR 71 at 115, Gaudron and McHugh JJ said:
"Advances in the common law must begin from a baseline of accepted principle and proceed by conventional methods of legal reasoning. Judges have no authority to invent legal doctrine that distorts or does not extend or modify accepted legal rules and principles."
well, for the exam they make law ok. Whatever word you prefer
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well such descriptions of the judicial method are inaccurate.
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well such descriptions of the judicial method are inaccurate.
Not necessarily. You say 'change and develop the law' others say 'make law'. Obviously they don't make law how parliament makes law, but through the doctrine of precedent and statutory interpretion they do engage in law-making. I mean you can dismiss VCAA, or any of the textbooks or examiners etc, but we wouldn't have entire chapters on 'law-making through the courts' if there wasn't some validity in the wording.
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And anyway, I was asking a question as to what I should write in the exam. I can't exactly go in there and answer a question that says 'There is no need for courts to make law. Parliaments do that job well enough. Do you agree?' and be like 'well ya know courts don't actually 'make law' like the textbook says..'
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And anyway, I was asking a question as to what I should write in the exam. I can't exactly go in there and answer a question that says 'There is no need for courts to make law. Parliaments do that job well enough. Do you agree?' and be like 'well ya know courts don't actually 'make law' like the textbook says..'
You write what you think is correct. It asks whether you agree or disagree. So you they will mark it depending on your how strong your argument is. I would write a summary of what I have said here. That the courts do not, or ought not, 'make the law', the role of the judiciary is to develop and gradually refine the law. I've provided you with my position, and on what grounds and authority i base my position on. I found the arguments of McHugh J, Gleeson CJ, and Dyson J in relation to the role of the courts highly persuasive. You don't have to agree with me, but that is my position, and the position that i would think is correct.
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You write what you think is correct. It asks whether you agree or disagree. So you they will mark it depending on your how strong your argument is. I would write a summary of what I have said here. That the courts do not, or ought not, 'make the law', the role of the judiciary is to develop and gradually refine the law. I've provided you with my position, and on what grounds and authority i base my position on. I found the arguments of McHugh J, Gleeson CJ, and Dyson J in relation to the role of the courts highly persuasive. You don't have to agree with me, but that is my position, and the position that i would think is correct.
I'm not saying I don't agree with you, and I am interested in your opinion. I'm just saying that the question presupposes that the courts do make the law. Meaning I can write that I agree that they should, or that I don't think they should, or somewhere in-between. I can't say that the courts don't make the law.
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well that's what Gleeson argued. that courts do not make the law, and they ought not make the law. i would give you bonus points for questioning the assumptions. the question gives you room to disagree anyway. so you can disagree with the assumptions implicit in the statement.
It like the question: "You should stop beating your wife" Do you agree?
you can reply: "well i do not beat my wife in the first place, nor should i beat my wife"
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Whilst I definetely I agree with what brendan's saying about them developing/refining law rather than "making" it per se, I'd say it's best to use to word "making" in an exam. I'd do that simply because the study design and all textbooks refer to it as such, and you wouldn't really want to run the risk of jeopardizing some marks so as to be technically correct.
Anyway, as for the topic at hand, it'd probably be a good idea to learn two examples in a great amount of detail and then perhaps learn a few more in a short amount of detail, just so you can throw them in if they're relevant.
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Lol Brendan. How could you be a moderator for VCE legal studies site when you disagree with the entire course that they are teaching us. Basically all we care about is fulfilling what is asked on the exam.
It is not our problem to question what they are teaching us. Maybe in Uni that is what you do but please for the sake of VCE legal students who are being assessed according to a particular study design, don't try and teach us anything that goes against the study design.
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LOL law is all about disagreement. If you want to see disagreement in action check out Al-kateb, and Perre v Apand.
anyway, the question you posed specifically allowed for disagreement. so i do not think that you would get marks taken off for criticizing the idea that judges "make law" or criticizing the idea that judges ought to make law.
if i had to say that they made law, then i would add the qualification that they must develop it gradually,
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The study design doesn't ask you to criticize whether or not judges make law. It is actually part of the study design that judges make law. You dont question it. I'm not arguing that in law you may question that but not in Legal Studies. You cannot do that. You can argue for the ways in which judges make law but you cannot say judges do not make law.
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well i would say that it is a deficiency of vce legal and that there is much authoritative disdain for the idea that judges make law most notably Sir Owen Dixon and the current Chief Justice Murray Gleeson. but if you had to say that judges actually make law, you could say that whilst they might make law, theyought not to, because they are stepping out of the designated role.
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That is actually one of the statements that you are required to respond to.
For example.
"Courts should have no place in the law making process"
Evaluate the strengths and weaknesses of law making by courts.To what extend do you agree or disagree with this statement?
Still though. You must highlight the fact that courts do make law. Regardless of your personal view on the matter.
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That is actually one of the statements that you are required to respond to.
For example.
"Courts should have no place in the law making process"
Evaluate the strengths and weaknesses of law making by courts.To what extend do you agree or disagree with this statement?
Still though. You must highlight the fact that courts do make law. Regardless of your personal view on the matter.
I mean you can if you want to, but i do not think that the statement "Evaluate the strengths and weaknesses of law making by courts." assumes that the Australian courts currently make law. It is simply asking you to evaluate a normative proposition, not a positive one. If it is ever said that courts "make law", my position is that it ought not to be said in a tone of approval. It is definitely not something that judges ought to be proud of. When they are sworn in, judges promise to do "justice according to the law" - not according to their own idiosyncratic values.
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The key term 'Evaluate' actually suggests that courts make law because how can evaluate something if it doesn't happen.
Seriously now this is becoming a joke. This is VCE legal studies. You have to understand that. I respect that you're studying law but legal studies isn't law. We have to know certain things and we are required to discuss them. Just because it is either through your opinion or your learning that courts do not make law is irrelevant to VCE legal studies.
Accept that that is what we have to know and if you have a problem with that I suggest contacting VCAA to discuss possible recomendations for change for when the study design is re accredited.
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Extract from VCE study design
ie. WHAT WE ARE REQUIRED TO KNOW.
Key knowledge
This knowledge includes
? the operation of the doctrine of precedent and the ability of judges to make law;
? statutory interpretation and the reasons for the interpretation of statutes;
? the effect of interpretation by judges;
? the strengths and weaknesses of law-making through the courts;
? the relationship between the courts and Parliament in law-making.
Like goosefraba said
If courts did not in some way make law there would not be multiple chapters in our text book dedicated to it.
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Evaluations of proposals that have not been implemented happen all the time. Particularly now considering during the Federal election, where commentators are evaluating the proposals of the political parties.
A proposal does necessarily need to be implemented for one to evaluate it.
If courts did not in some way make law there would not be multiple chapters in our text book dedicated to it.
Secondly, i think you guys are confusing two things
(1) the positive proposition that the courts do make law
(2) the normative proposition that the courts ought to make law.
They are two different things. The question that you posed to me, i think was looking at (2) not (1). I do not believe the question was asking students to debate (1), the question as i read it is asking students to evaluate (2).
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I am responding to this
I mean you can if you want to, but i do not think that the statement "Evaluate the strengths and weaknesses of law making by courts." assumes that the Australian courts currently make law.
Here you are saying that the question is not assuming that courts do make law. Ie. You are saying courts dont make law.
That is what I am arguing
They DO make law.
As for your last post... of course you dont have to agree that law making through courts is good. ALL i am saying is that you have to ackknowledge that they do make law... well to make you happy I will say... in the Vce study design.
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(a) "Evaluate the strengths and weaknesses of law making by courts."
(b) courts make law
I made the statement that: (a) does not imply or logically necessitate (b), though (b) might very well be true.
That statement that I made above does not logically necessitate that i made a claim to the effect that (b) is false.
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I agree with costargh - courts do make law, it doesn't matter that they do it to a much lesser extent and in a different manner to parliament. At the end of the day we must abide by their decisions until it is overruled or parliament abrogates it etc.....
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well i would say that it is a deficiency of vce legal and that there is much authoritative disdain for the idea that judges make law most notably Sir Owen Dixon and the current Chief Justice Murray Gleeson. but if you had to say that judges actually make law, you could say that whilst they might make law, theyought not to, because they are stepping out of the designated role.
Oh! So that's where "Owen Dixon" chambers comes from. I always wondered where the name came from. :P
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hm this thread got off track.
hey brendan quick question, seeings as i won't be seeing my teacher before tommorrow: I've been going through the assessment reports right, and one of the questions asked something about the effectiveness of parliament as law-makers compared to courts, and one of the 'example answers' that they give had something along the lines of -
'a weakness of parliament is that they may be too concerned with being voted out, and this may mean they will be reluctant to legislate in controversial areas for fear of an electoral backlash, and for this reason we have seen that parliament was not the primary law-maker in areas such as aboriginal land rights and abortion' (not exact words haha)
so with the aboriginal land rights, I assume they are talking about the mabo and wik cases, but do you know what the significant court case relating to abortion might be? I haven't heard of it, and I probably don't need to know, but I was just wondering
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there is really only 1 major case on abortion for victoria
[i]R v Davidson[/i] [1969] VR 667
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hey thanks :)
not that i'm lazy or anything haha but without reading it all what was the precedent set?
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google is your friend: http://en.wikipedia.org/wiki/R_v_Davidson