LESSON 18.4 How do courts make laws?
LEARNING INTENTION By the end of this lesson you should be able to: • identify how the courts make laws • define the term precedent and how it applies to lawmaking.
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Did you know? Courts often must decide the meaning of words in statutes when deciding cases. The Victorian Control of Weapons Act 1990 makes it an offence to carry a regulated weapon without a lawful reason. Items that could be classed as a regulated weapon without someone realising it include everyday objects that, under certain regulations, are considered dangerous. For example, a hockey stick can be classed as a dangerous weapon if it is used to harm someone. You be the judge: 1. Create a list of items that you think could be classed as weapons. 2. Do you think someone should be convicted of the offence ‘carrying a regulated weapon without a lawful excuse’ if they have a hockey stick off the pitch? Justify your answer. 3. Suggest one reason a person might need to have a weapon.
FIGURE1 A game of hockey, played with a hockey stick
18.4.1 Common law The main role of courts is to settle disputes, but courts also make laws. They do this as they interpret existing laws and make decisions to resolve the cases they are hearing. This type of law is known as case law, judge-made law or common law . Common law originated in England as judges travelled from village to village making decisions based on tradition, custom and precedent . The judges began to apply a law that was common to all people across the country, rather than using the customary law of each region. Common law is applied today when cases come to court and there is no legislation regulating that case. The judge needs to make a decision about the law on this type of matter. This process is illustrated in the following case study, Finders keepers. The law relating to who has the right to own things that are found has changed over the years as judges have made new decisions. The judges in the following cases made decisions that became part of the common law because there was no existing law about possession that specifically applied to the cases.
534 Jacaranda Humanities Alive 8 Victorian Curriculum Third Edition
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