Strengths of Courts as Law Makers
One strength of courts is that they are able to make laws quickly. Unlike parliament passing a bill whereby voting may need to occur across a bicameral structure, courts are able to make decisions efficiently when a dispute comes before them whereby precedent has not been established. If this is undertaken by a superior court, the decision becomes binding on lower courts within the same hierarchy and common law can be created in a relatively quick manner.
Another advantage of courts as law makers is their ability to updating legislation to ensure that they remain relevant and modern to society's purposes. Through the ability to interpret legislation, courts are able to expand (and contract) meanings of words to ensure that they can be reasonably applied to current situations. This can be demonstrated in Kevin and Jennifer whereby the definition of "man" was updated as a result of the ability for females to undergo gender-reassignment surgery.
Another strength of courts is the appeals process available to parties. If a party is dissatisfied with the outcome of their case on certain grounds, they have the ability to appeal to a higher court in order to seek a second opinion from a superior judge. This allows the decision previously made at trial to be checked and if deemed incorrect, reversed if necessary. This forms new precedent and ensures fairness within the legal system.
Another strength of courts is that judges are independent law makers. That is, compared to members of parliament, judges do not face the same political pressure to be re-elected. As such, they don't feel to need to appease lobbyist or worry about voter backlash when making their decision or fear of not being re-elected. This gives judges the independence to make decisions based on fair reasoning rather than one that is politically motivated.
Weaknesses of Courts as Law Makers:
One weakness of courts is that they can only make laws when a dispute arises before them. Unlike parliament as the supreme law making authority, and therefore can make laws at any time, courts can only make laws ex-post facto or after the fact. This means that problem or dispute has already arisen in society and now courts can only seek to resolve to dispute, not prevent it from happening like parliament can even though they can foresee the problem arising.
Another weakness of courts is that precedent can be overridden through being abrogated by parliament at any time. If parliament disagrees with the decision made by courts, provided that they have the necessary jurisdiction, parliament can introduce legislation that overrides or abolishes the decision made by courts. This can apply even to precedent established in the High court. An example of this can be seen in Trigwell's case when Victorian parliament introduced the Wrongs Act putting onus on farmers if their livestock caused damage as a result of negligence.
Another disadvantage of courts as law makers is that judges are appointed, not elected. This places judges in a law making decision without being democratically voted in power by the people. Furthermore, judges come from a very narrow socio economic group and therefore the decision that they make may not necessary reflect or represent the values or ideals of society or the wants and needs of the people. An example here is that often, Indigenous people's views and values are not reflected in decisions made by judges.
Lastly, another disadvantage of courts is that they may be restricted in their law making role if they're bound by precedent they are unable to avoid. Due to the notion of stare decisis and standing by what has been decided, if a lower court finds that they cannot distinguish material facts in a case, they have no choice but to follow existing precedent established by higher courts even if they do not agree with the outcome. This creates a situation were common law may become rigid or out dated.
One strength of courts is that they are able to make laws quickly. Unlike parliament passing a bill whereby voting may need to occur across a bicameral structure, courts are able to make decisions efficiently when a dispute comes before them whereby precedent has not been established. If this is undertaken by a superior court, the decision becomes binding on lower courts within the same hierarchy and common law can be created in a relatively quick manner.
Another advantage of courts as law makers is their ability to updating legislation to ensure that they remain relevant and modern to society's purposes. Through the ability to interpret legislation, courts are able to expand (and contract) meanings of words to ensure that they can be reasonably applied to current situations. This can be demonstrated in Kevin and Jennifer whereby the definition of "man" was updated as a result of the ability for females to undergo gender-reassignment surgery.
Another strength of courts is the appeals process available to parties. If a party is dissatisfied with the outcome of their case on certain grounds, they have the ability to appeal to a higher court in order to seek a second opinion from a superior judge. This allows the decision previously made at trial to be checked and if deemed incorrect, reversed if necessary. This forms new precedent and ensures fairness within the legal system.
Another strength of courts is that judges are independent law makers. That is, compared to members of parliament, judges do not face the same political pressure to be re-elected. As such, they don't feel to need to appease lobbyist or worry about voter backlash when making their decision or fear of not being re-elected. This gives judges the independence to make decisions based on fair reasoning rather than one that is politically motivated.
Weaknesses of Courts as Law Makers:
One weakness of courts is that they can only make laws when a dispute arises before them. Unlike parliament as the supreme law making authority, and therefore can make laws at any time, courts can only make laws ex-post facto or after the fact. This means that problem or dispute has already arisen in society and now courts can only seek to resolve to dispute, not prevent it from happening like parliament can even though they can foresee the problem arising.
Another weakness of courts is that precedent can be overridden through being abrogated by parliament at any time. If parliament disagrees with the decision made by courts, provided that they have the necessary jurisdiction, parliament can introduce legislation that overrides or abolishes the decision made by courts. This can apply even to precedent established in the High court. An example of this can be seen in Trigwell's case when Victorian parliament introduced the Wrongs Act putting onus on farmers if their livestock caused damage as a result of negligence.
Another disadvantage of courts as law makers is that judges are appointed, not elected. This places judges in a law making decision without being democratically voted in power by the people. Furthermore, judges come from a very narrow socio economic group and therefore the decision that they make may not necessary reflect or represent the values or ideals of society or the wants and needs of the people. An example here is that often, Indigenous people's views and values are not reflected in decisions made by judges.
Lastly, another disadvantage of courts is that they may be restricted in their law making role if they're bound by precedent they are unable to avoid. Due to the notion of stare decisis and standing by what has been decided, if a lower court finds that they cannot distinguish material facts in a case, they have no choice but to follow existing precedent established by higher courts even if they do not agree with the outcome. This creates a situation were common law may become rigid or out dated.