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December 07, 2019, 08:52:11 pm

Author Topic: Difficulties in gaining access to the law  (Read 4944 times)  Share 

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brendan

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Difficulties in gaining access to the law
« Reply #30 on: November 12, 2007, 09:08:14 pm »
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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.

costargh

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Difficulties in gaining access to the law
« Reply #31 on: November 12, 2007, 09:15:53 pm »
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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.

brendan

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Difficulties in gaining access to the law
« Reply #32 on: November 12, 2007, 09:18:27 pm »
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Quote from: "costargh"
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.

costargh

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Difficulties in gaining access to the law
« Reply #33 on: November 12, 2007, 09:31:37 pm »
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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.

costargh

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Difficulties in gaining access to the law
« Reply #34 on: November 12, 2007, 09:35:27 pm »
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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.

brendan

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Difficulties in gaining access to the law
« Reply #35 on: November 12, 2007, 09:42:30 pm »
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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.

Quote from: "costargh"

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).

costargh

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Difficulties in gaining access to the law
« Reply #36 on: November 12, 2007, 09:47:02 pm »
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I am responding to this
Quote from: "brendan"
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.

brendan

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Difficulties in gaining access to the law
« Reply #37 on: November 12, 2007, 09:51:46 pm »
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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.

azhtey

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« Reply #38 on: November 13, 2007, 02:13:53 pm »
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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.....
"BROWS"

enwiabe

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« Reply #39 on: November 13, 2007, 07:50:22 pm »
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Quote from: "brendan"
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

Pencil

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« Reply #40 on: November 13, 2007, 09:16:29 pm »
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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

brendan

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Difficulties in gaining access to the law
« Reply #41 on: November 13, 2007, 09:32:19 pm »
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there is really only 1 major case on abortion for victoria

[i]R v Davidson[/i] [1969] VR 667

Pencil

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« Reply #42 on: November 13, 2007, 09:36:36 pm »
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hey thanks  :)
not that i'm lazy or anything haha but without reading it all what was the precedent set?

brendan

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Difficulties in gaining access to the law
« Reply #43 on: November 13, 2007, 09:38:37 pm »
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