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Author Topic: Difficulties in gaining access to the law  (Read 4546 times)  Share 

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Difficulties in gaining access to the law
« Reply #15 on: November 11, 2007, 02:55:19 pm »
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Quote from: "brendan"

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?)

brendan

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« Reply #16 on: November 11, 2007, 02:57:25 pm »
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Quote from: "goosefraba"


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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« Reply #17 on: November 11, 2007, 02:58:25 pm »
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Quote from: "brendan"
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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« Reply #18 on: November 11, 2007, 03:01:45 pm »
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Quote from: "goosefraba"
Quote from: "brendan"
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]

Quote from: "Gleeson CJ"
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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« Reply #19 on: November 11, 2007, 03:03:50 pm »
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Quote from: "brendan"

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]

Quote from: "Gleeson CJ"
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

brendan

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« Reply #20 on: November 11, 2007, 03:39:47 pm »
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well such descriptions of the judicial method are inaccurate.

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« Reply #21 on: November 11, 2007, 04:13:19 pm »
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Quote from: "brendan"
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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« Reply #22 on: November 11, 2007, 04:15:43 pm »
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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..'

brendan

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« Reply #23 on: November 11, 2007, 04:24:13 pm »
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Quote from: "goosefraba"
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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« Reply #24 on: November 11, 2007, 04:34:40 pm »
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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.

brendan

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« Reply #25 on: November 11, 2007, 04:38:35 pm »
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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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« Reply #26 on: November 11, 2007, 09:53:50 pm »
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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.
b]2007[/b] - Legal Studies, IT Applications
2008 - Literature, History: Revolutions, International Studies, National Politics, UMEP History

costargh

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Difficulties in gaining access to the law
« Reply #27 on: November 12, 2007, 06:24:20 pm »
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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.

brendan

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« Reply #28 on: November 12, 2007, 07:07:06 pm »
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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,

costargh

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« Reply #29 on: November 12, 2007, 09:05:57 pm »
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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.