darthsophia
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just choose one..........
Case law or legislation better? (1 Viewer)
- Thread starter darthsophia
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Re: Case laws or legislations better?
I'm assuming you're a law student, or at least somewhat interested in the law - in which case you should know that ambiguous terms such as 'better' cause nothing but trouble.
The common law informs that made by the legislature. Without the common law the application of statutory provisions would be unable to account for novel fact situations, and consequently provide outcomes that are either too harsh or too insufficient. Conversley, without the legislature, the common law is often too slow to expand into new areas (technology, for example), or quickly gets left behind as the society it governs changes (Crimes Act, CLA).
If by 'better' you mean 'easier to understand', then it still remains a grey area. How many cases have turned upon the definition of a single word in a section of an act? And similarly, how many appeals reach the one outcome, but on different tests applied by individual judges in their judgements?
Of course, if by 'better' you mean 'easier to read', then legislation has a clear advantage, especially when dealing with individual sections. But then you realize that you have an essay on corporations law due tomorrow morning, and that a good portion of the Corporations Act's 1452 sections and eight schedules are essential to your research. Suddenly Kirby J's "I agree with Gleeson CJ" doesn't look so bad*.
(* This is a joke. Justice Kirby will never actually agree with anyone, ever.)
I'm assuming you're a law student, or at least somewhat interested in the law - in which case you should know that ambiguous terms such as 'better' cause nothing but trouble.
The common law informs that made by the legislature. Without the common law the application of statutory provisions would be unable to account for novel fact situations, and consequently provide outcomes that are either too harsh or too insufficient. Conversley, without the legislature, the common law is often too slow to expand into new areas (technology, for example), or quickly gets left behind as the society it governs changes (Crimes Act, CLA).
If by 'better' you mean 'easier to understand', then it still remains a grey area. How many cases have turned upon the definition of a single word in a section of an act? And similarly, how many appeals reach the one outcome, but on different tests applied by individual judges in their judgements?
Of course, if by 'better' you mean 'easier to read', then legislation has a clear advantage, especially when dealing with individual sections. But then you realize that you have an essay on corporations law due tomorrow morning, and that a good portion of the Corporations Act's 1452 sections and eight schedules are essential to your research. Suddenly Kirby J's "I agree with Gleeson CJ" doesn't look so bad*.
(* This is a joke. Justice Kirby will never actually agree with anyone, ever.)
goan_crazy
Hates the waiting game...
Re: Case laws or legislations better?
I think its best to have legislation and cases in an answer
the legislation is your statutory proof and cases show precedents.
I think its best to have legislation and cases in an answer
the legislation is your statutory proof and cases show precedents.
hYperTrOphY
Member
Re: Case laws or legislations better?
Both can provide 'the law'.Justin said:
Vahl
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Re: Case laws or legislations better?
it depends on the area of law.
eg torts and contracts are larglely based on case law, in so far as the CLA and TPA haven't screwed around, wheras the criminal law is almost exclusively structured around legislation.
it depends on the area of law.
eg torts and contracts are larglely based on case law, in so far as the CLA and TPA haven't screwed around, wheras the criminal law is almost exclusively structured around legislation.