Judge made law is used to interpret what the

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Judge-made law is used to: Interpret what the legislature's intent was when it passed legislation (that is, the courts determine what the words of the statute mean when the words are ambiguous ) Make decisions in areas where the legislature has not passed any statute. In such cases the courts base their decisions on a long history of previous decisions by judges who have had to resolve disputes in the same area of law. This involves using “the doctrine of precedent”, the operation of which we will also look at in detail later. 1.5.3 Sources of Law in Civil Law Countries In Civil Law countries, law-making is done exclusively by the legislature. The courts' role is to interpret and apply the law that the legislature has passed. Therefore, in contrast with the Common Law countries, in Civil Law countries the legislature makes general laws (Codes) that are designed to cover every area of activity in society. In Common Law countries legislatures tend to pass specific laws in areas they think important, leaving the rest of the law to be decided by the judges. As we will see later, however, when interpreting a statute (a law made by the legislature) a court is in a sense ‘making’ law - at least for the particular case before it. Moreover, there are signs of a growing trend among Civil Law judges to pay heed to earlier decisions, even though they are not bound to do so. 14
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CO5119:03 Business Law SUBJECT MATERIALS >> SCHOOL OF LAW JAMES COOK UNIVERSITY 1.6 The Administration of the Law The legal system is not just rules, though rules form an important part of it. It includes legal institutions like courts, prisons, law schools, administrative offices, law libraries, parliament and lawyers' offices. It also includes people who, in one way or another, make the law the centre of their professional life: judges, magistrates, solicitors and barristers, law teachers, and so on. (R. Chisholm, G. Nettheim, Understanding Law, Butterworths, 6th ed., 2002, p.3) 1.6.1 Courts Australian Courts: an example of Common Law courts in a Federal system The following extract from Pentony, Graw, Lennard and Parker Understanding Business Law Butterworths 4 th ed, 2009 describes the Australian Court system and should be read in conjunction with the diagram in The Courts Hierarchy of courts [2.1] The courts are vital to the operation of law since they dispense justice, resolve disputes and punish wrongdoers. The courts also play an important role in the development of common law, central to which is the hierarchy of courts. The hierarchy refers to the ranking of courts according to their importance. Each level of the court system has a particular jurisdiction, or lawful authority to hear certain legal matters. The higher the court in the hierarchy, the more serious are the matters it can consider, the more likely is it able to hear appeals from lower courts and the greater the effect of its decisions in terms of precedent. The more serious the crime, or the greater the monetary amount claimed in a civil matter, the further up in the court hierarchy will the matter be heard.
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