Strengths and weaknesses of law-making through the courts

Strengths Weaknesses
Courts must make a decision on cases that come before them, and therefore they can change the law quickly once a relevant case arises. Court must wait for a new case to arise to make law and such cases are rare. For a case to be bought before the court a party must have legal standing (be directly affected by the issue) and be willing to spend the required time and money.
Courts are free from political pressure and therefore can make law on controversial areas without fearing voter backlash. For example, Victorian courts developed law on abortion in 1969, long before parliament did so. Judges are often conservative and are, therefore, unwilling to embrace the role of law-maker preferring to leave this to parliament. Indeed, their primary role is to resolve disputes. For instance, in the Trigwell case, a court upheld the old principle that a stock owner was not responsible for wandering stock and the damage it caused.
Courts can prevent the law from becoming too rigid. The flexibility of precedent can allow growth in the law and courts can keep the law flexible by giving it meaning. Courts may be bound by an outdated precedent and an unjust ruling may occur. For example, in 1985 a Victorian Court upheld an old precedent stating that a husband can rape his wife.
Courts can fill in the gaps in law left by parliament when a new situation arises. This may come about due to changes in technology or social values.e.g. legal status of transsexual people in the ‘Kevin and Jennifer’ case 2003 Courts can only make law on the case before them, not beyond. As such they cannot fill all the holes left by parliament. Additionally, changes to the law are made ex post facto (after the event). They have no ability to make law anticipating a future case.
Judges have a great level of expertise in the law, as they deal with its day to day application and may be able to, better than parliament, recognise the law’s weaknesses. Judges’ resources are limited. They can only focus on facts and issues presented to them by the parties to a dispute. This may prevent them from obtaining a comprehensive picture of facts and law and impact their law-making ability.

See also:

Relationships between courts and parliament in law-making

Strengths and weaknesses of parliament as a law-making body