Activity 9h

1. There are a number of ways in which the doctrine of precedent affects the ability of parliament to make law including:

• theprinciple of stare decisis – for example, stare decisisallows the law to develop and improve with each subsequent case.
• methods of departure – for example, the High Court is not bound by the decisions of any other court,or even of itself. This enables it to overrule or reverse undesirableprinciples, or to distinguish them and suggest in its obiter thatthe precedent should be avoided. It has flexibility – but theunpredictability of changing precedent is limited by it only beingone court, and by lower courts not having equal powers.
• the importance of the ratio decidendi – for example, the ratio decidendi is enunciated separately from the facts andthe conclusions in most court judgments. This is to allow the lawto develop independently of the specific facts in the case, and tohelp others identify what the law is that they should follow in theircases. Many judges now use subheadings in their judgments.

2. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the impact of the doctrine of precedent on the ability of courts to make lawrequires students to write about relevant factors enabling courts and relevant factors limiting courts. Responses will vary according to the arguments selected.

3. The task word ‘analyse’ requires features or concepts to be broken down and shown how they relate to each other. It may require both sides of the question to be addressed to some extent, and a clear opinion to be provided. In this case, a clear opinion on one way in which the doctrine of precedentaffects the ability of courts to make law should be given.

For example, in relation to the principle of stare decisis, stare decisisallows the law to develop and improve with each subsequent case.Judges can create new common law when a dispute arises andthere is no immediately-relevant law. Because other judges willstand by that decision, a new principle of law is then settled forsimilar, future cases. However, stare decisis can promote rigidity over a balanced flexibility. It encourages conservative approaches in judges, and requires lower courts to follow principles of law that have been criticised by the public and other courts.

4. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence, that while there are some limiting factors, the doctrine of precedent does enable courts to make law. In this case, ‘evaluating’ the ability of courts to make law in relation to the doctrine of precedent requires students to write about relevant factors enabling courts and relevant factors limiting courts.

For example, in relation to the principle of stare decisis, this feature allows the law to develop and improve with each subsequent case. Further, when a dispute arises and there is no immediately-relevant law,judges can create new common law. Because other judges will stand by that decision, a new principle of law is then settled for similar, future cases. However, stare decisis can promote rigidity over a balanced flexibility. It encourages conservative approaches in judges, and requires lower courts to follow principles of law that have been criticised by the public and other courts. In addition, rigid adherence to stare decisis can lead to injustice, if courts are more concerned with the procedure of applying the law than with the justice of the outcome once it is applied; it stops us focusing on achieving substantive fairness.