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This subject examines some persistent legal problems relating to the making and application of law. These include the following:
- What does it mean to speak of a system of binding precedent? What status might (should) foreign precedents have in other jurisdictions?
- Can judges make law? If they do, how is the law that they make different from that which legislatures make?
- Do legislatures have intentions? Are there any limits to what the legislature can enact?
- Should courts be constitutionally entitled to review the legality of laws that legislatures enact? Without this entitlement, what can courts do with those laws?
The subject will cover issues of interest to students from both civil and common law jurisdictions.
Principal topics include:
- The characteristics of, and differences between, enacted and judge-made law
- The nature and authority of precedent
- Retroactive law
- Judicial review of legislation
- Approaches to statutory interpretation.
Intended learning outcomes
Students who complete this subject should as a consequence be able independently and critically to:
- Formulate the distinction between judge-made and enacted law
- Explain the concept of the rule of law, as well as the rule-of-law implications of accepting the validity of certain forms of law (eg, retroactive laws)
- Assess the main principles of statutory interpretation, and distinguish law-interpretation from law-creation
- Explain the advantages and drawbacks of the principle of legislative supremacy
- Explain the advantages and drawbacks of allowing courts to review the legality of legislation.
Last updated: 6 December 2019