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Module 1: How and why the law changes

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The Role of the Courts in Changing the Law

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Legal Studies - The Role of the Courts in Changing the Law

Role of Courts in Changing the Law

The courts are able to change the law by establishing and adapting new
case law principles in giving decisions (i.e. precedents). This law-making
or law-changing role of the courts is, however, a secondary function to
their dispute-resolution role. In this way, the courts are reactive
law-makers: they can only 'make' law when a case arises for decision, not
decide the timing of a case law change. Even then, it is effectively only
the superior courts which make law when a matter proceeds to appeal before
the courts higher in the hierarchy (e.g. Full Bench of the High Court of
Australia).

Courts have been very significant in the development of our law and many
branches of the law stem from case law principles established by judges in
court cases over time. These include:

* tort law: manufacturers' liability for negligence

* contract law: the elements of a valid contract

* criminal law: the elements of murder as an indictable offence

* constitutional law: the meaning of 'free trade' between the states of
Australia

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