3.1 The Role of the Courts in Law-Making PDF

WEEK THREE 3.1 THE ROLE OF THE COURTS IN LAW-MAKING  OUTLINE Objectives: To outline the civil trial process; to understand case-law as a source of law; to distinguish the origins of common law and equity; to explain the principles according to which case-law is...

WEEK THREE 3.1 THE ROLE OF THE COURTS IN LAW-MAKING  OUTLINE Objectives: To outline the civil trial process; to understand case-law as a source of law; to distinguish the origins of common law and equity; to explain the principles according to which case-law is made; to understand how cases are referred to and where case-law is found; to be able to apply case-law by analogy.  BASIC PROCEDURE IN A CIVIL CASE Civil litigation begins with an exchange of written documents (‘pleadings’) in order to define the nature and extent of the dispute. When the case comes to trial in court, evidence is led from witnesses, or by producing documents, to establish the facts relied on by plaintiff and defendant. Each side then presents an argument as to what the relevant law is and how it should be applied. The court decides what facts are proved, and what the law is. The case is decided according to the law and an appropriate order is made.  A JUDGE’S POWER TO MAKE LAW The normal expectation is that judges apply the existing law to cases. Judges have no direct authority (for instance, from a constitution) to ‘make’ law. Nevertheless reference is commonly made to ‘judge-made’ law and the reports of decided cases are routinely cited as a source of law. We find that judges make law indirectly when they decide cases.  OPPORTUNITIES TO MAKE LAW WHEN DECIDING CASES In most cases, when deciding cases, judges simply find an established rule of law and apply it. But sometimes, the judge may not be able to find an established rule of law to apply. In such cases, judges have various alternatives. They may: Declare a rule as a rule of Australian law the first time, eg, a previously unwritten rule of law, or one deriving from natural law or custom. Interpret an existing rule of law, to establish its meaning Extend an established rule of law to a new situation.  HOW ENGLISH JUDGES DEVELOPED THE COMMON LAW Before the 14th century, local laws and customs applied in different parts of England. After the 14th century, a uniform (common) body of law came to be applied by the King’s courts throughout England, replacing local laws. This body of case-law is known as the ‘common law’. Characteristically, the common law is applied in a strict, legalistic way. Appeals from common law courts were originally made to the King’s Chancellor. Later, appeals were heard by the Court of Chancery.  THE DEVELOPMENT OF EQUITY The decisions of the Court of Chancery developed into a body of rules referred to as ‘equity’. As the name implies, these rules are based on notions of justice and fairness. The separate common law courts and courts of equity have now been replaced by a single system of courts and all courts draw on both common law and equity to resolve new cases. Common law and equity can be referred to jointly as ‘case- law’ or ‘the general law’, as distinct from legislation.