VCE 3/4 LEGAL STUDIES Unit 3, Area of Study 2 Role of the courts in law-making

Role of the courts in law-making encompasses two main features, including study of the Doctrine of Precedent and statutory interpretation. These two features are looked at in the context of the roles the courts play in making law (through these methods). While it is possible to understand them in isolation, there is much overlap between the two, so as you progress through this unit, it will become evident that one is an element of the other and vice versa. In understanding the role of the courts in law-making, students study common law principles on which later study is based. The concept of precedent, including various elements such as ratio decidendi and methods of avoiding is examined and studied closely, along with relevant cases. Within statutory interpretation, various methods of approaching a case are looked at, followed by reasons for statutory interpretation and its many effects. Again, this is supplemented with relevant legal cases (some of which can be used from previous units). This (shorter) unit is then rounded out with a simple strengths/weaknesses analysis of the courts as law-making entities and a look into the relationship between the courts and parliament. [Refer to the Study Design for more specific key knowledge points.]

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Elements you should have no trouble with:

These are key knowledge components which are fairly easy to understand and memorize. There are no real complexities, nuances or specifics that are likely to trip you up here. Reasons for interpretation of statute and effects of interpreting statute The relationships between courts and parliament

Elements to look out for:

These are key knowledge components which are harder to understand and explain in an exam situation. They are more nuanced in nature and have little complexities and specifics which can cost marks if not included in a response. These also often need examples to clarify a point. It would pay to put time and effort into perfecting your understanding of these concepts as well as noting details.
The ability of judges and courts to make law: This part of the area is usually associated with analysis questions on SACs and exams (i.e. to what extent? type questions) and hence you have to fairly soundly understand what helps or impedes the ability of judges to make law through courts. This often ties in with strengths and weaknesses of the courts as law-makers so it is vitally important that you can make the distinction when interpreting questions or know when to combine them. The operation of the Doctrine of Precedent: This is a very multi-faceted part of the area and often quite hard to explain clearly, quickly and succinctly in an exam situation and taking time to fully and properly understand this section is important. Remembering to make mention of all the facets can be quite challenging (Ratio Decidendi, Stare Decisis, Obiter Dictum, Binding, Persuasive etc.). Strengths and weaknesses of law-making through the courts: as always, strengths and weaknesses can prove difficult both in terms of remembering them and producing them in an appropriate way in a SAC or exam. Again, pick a few strengths and find their conjugate weaknesses.

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Other general tips:

These are tips and pieces of advice that are generally applicable to all of Legal Studies, but the following are more tailored to AOS 1, Unit 3. This particular area of study has a lot of analysis questions which typically combine many facets of the area (rather than just assess certain parts in isolation). It is important that you hone your ability to interpret questions well and understand what you have to put in to attain full marks. Practice is the key here and getting your work marked by other people will be of great benefit. Case studies are essential in this area in order to clarify and solidify your answers. They are not directly required, but often it will be impossible to obtain full marks without them. There are many cases to choose from and often many overlap. So pick the ones you can most easily explain and the ones which cover the most situations. Carefully read the relevant parts of the study design, including the unit and area summaries. This will give you a clear idea of the purpose of each section, and the umbrella area it relates to, hopefully leading to a better and broader understanding of the concepts and ideas. Read the key skills and key knowledge thoroughly so you know what can and cant be specifically asked, and the way in which examiners can ask it. Learn the various implications of terms such as Critically Evaluate, Distinguish etc. in the context of questions (Command Terms). More about this is posted on the Activate Education Facebook page. When studying strengths and weaknesses of anything in Legal Studies, try to find a strength and link it to a conjugate weakness. That way it will be easier to remember the two as a pair, and your writing will also flow much better and sound a lot more cohesive in analysis questions. Generally, textbooks and other resources will give many elements for a particular topic. For example, when discussing the role of the Upper House, your textbook may present you with 4-5 roles the Upper House has. It is in your best interest to pick 3 (or 4) of the most obvious and easy to remember ones, rather than try to remember every single reason given.

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