Activity 9j

1. There are a number of ways in which judicial conservatismaffects the ability of parliament to make law including:

• therelationship between the courts and parliament – for example,judicial conservatism doesn’t prevent judges from developing the common law – it merely discourages them from branching it out into new areas that parliament has chosen not to legislate on, or that seem contrary to the wishes of parliament. Instead, the development of significant new legal principles is left to parliament, and the main role of the courts is to elaborate what those laws mean and provide interpretation that embodies the intentions of the legislators.
• use of individual judgment and policy considerations – for example,conservative courts are not opposed absolutely to developing the law in response to changing values, social needs and other ‘policy’ considerations that require the individual judgment of the judges. They are simply opposed to doing it too readily, or in situations where it is anything less than absolutely necessary.
• conservative nature of precedent – for example,the inherently conservative nature of the doctrine of precedent isadopted more or less by almost every judge. This may not assist withrapidly changing the law in every case, but it does help to ensurethat the law, once made, is respected, followed, and consistentlyapplied by courts in the future.

2. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the impact of judicial conservatismon 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 judicial conservatismaffects the ability of courts to make law should be given.

For example, in relation to the relationship between the courts and parliament, judicial conservatism doesn’t prevent judges from developing the common law – it merely discourages them from branching it out into new areas that parliament has chosen not to legislate on, or that seem contrary to the wishes of parliament. Instead, the development of significant new legal principles is left to parliament, and the main role of the courts is to elaborate what those laws mean and provide interpretation that embodies the intentions of the legislators. However, because parliament is the supreme law-maker and the onlydemocratically-elected law-maker, many judges prefer to leave majorchanges or departures from existing law to the legislature. The beliefis that judges overstep their role when they are too creative, andare unable to make comprehensive and effective law because they lack the resources that parliament has.

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, judicial conservatismdoes 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 relationship between the courts and parliament, judicial conservatism doesn’t prevent judges from developing the common law – it merely discourages them from branching it out into new areas that parliament has chosen not to legislate on, or that seem contrary to the wishes of parliament. Instead, the development of significant new legal principles is left to parliament, and the main role of the courts is to elaborate what those laws mean and provide interpretation that embodies the intentions of the legislators. Here, the argument is not against the Court developing the law by setting precedent on the meaning of the law. The argument is against interpreting the law in a way that is inconsistent with the intentions of its drafters. However, because parliament is the supreme law-maker and the only democratically-elected law-maker, many judges prefer to leave major changes or departures from existing law to the legislature. The belief is that judges overstep their role when they are too creative, and are unable to make comprehensive and effective law because they lack the resources that parliament has. Further, even judges commonly considered the most activist do not see their role as analogous with that of the legislature.