Since common law is made by the judge over searing the case, he/she must not have any outside influences, or an appeal may take place. The judge must only listen the two sides presented, and in Australia may not inquire any further into the matter. Consequently the judge’s decision should be impartial, although this is only in theory. There is also a disadvantage to this, in the respect judges must rely on their own powers and cannot ask for assistance or expertise, which is contrasted to a parliament. While they can indeed ask for assistance, the Government and other parties are ultimately out to win votes in elections in order to stay in power. Yes, this may seem cynical, however they attempt to please the public by listening to what society wants. As a result both state and federal parliaments are constantly influenced by pressure groups such as the media and trade unions.
If society disapproves of the Government’s decision/s, they may be voted out next election. This is the beauty of a democratic system. However, in the courts, judges are not elected by the people but are appointed. They are also very difficult to remove from office. It has been found that it is much more difficult for a woman to progress as high as a man in the legal profession, so for that reason there would obviously be less female judges. Who knows if this is what the public wants, yet if a person prefers a female or male member of parliament they have the ability to have their say and make their vote count.
Members of parliament are the only people involved in the process of making a statute law. The public do not get to vote and express their opinion; we simply elect the party of our choice, free of charge, and basically leave the “dirty work” up to them. Sure this is convenient, yet if you – the average Mr Smith in the street - do not like a particular statute law, there is nothing you can do about it. However of Mr Smith was to appear in court (which may cost him an inordinate amount of money) he has a chance to have a say and therefore convince a jury or judge that his side is correct. This could potentially set a precedent or change one already established. Thus, an everyday civilian has the power to contribute to the process by which a common law is made. If Mr Smith does not like the outcome of his case, he can take the matter further. This comes under ‘equity’ – a body of laws in addition to the common law, which attempts to give a better chance for justice to prevail. In theory a person could end up taking a minor case to the high court, if he/she had grounds each time to appeal.
In a courtroom, a judge relies on a precedent if a case is alike to another, in order to ensure consistency between decisions, and to guarantee to society that laws are being applied in a coherent and constant manner. A judge’s job is to interpret statute law, and naturally different people have their own interpretation of laws, just as people take parables in the Bile to means several things. Hence precedents are essential to eradicate prejudice and promote justice. This was demonstrated recently, when the rape of young Caucasian women continued to occur, and the public were outraged at the mild sentence the offenders were handed. Not long after, the law was changed and the gaol sentence increased; so one person who was convicted before the law was made, received a lighter penalty than another offender who committed the same crime the next day when the law had been implemented.
This situation also displays the speed at which a parliament can adopt to change. Literally a law can be created and passed over night. This, although unsuccessful, was attempted by PM John Howard when the asylum seekers were entering by the boatfuls. A successful quick change to the law was seen when the penalty for sending a hoax letter was dramatically increased. This was due to the issue of safety during the turmoil of the War on Terrorism and the anthrax threats. Unfortunately common law is much slower to change. If a judge wants to change a precedent, they must be in a higher court, and if they want to set a new precedent all together, laborious processes must be followed to prove a particular case is unlike to others in the past. Even if a judge was successful in setting a revised precedent to a case, he/she has only changed an isolated area of the law under particular circumstances, and has not altered the statute law by which the common law is interpreted from. Another problem faced is that a judge only has the power to question a precedent of a case that comes to their courtroom. If they dislike a precedent from 1923, unless a similar case appears, they are never given the opportunity to challenge it.
In a similar way, a judge is only given the power to penalise the people involved in the case. This is in contrast to the police, who, working under statute law have the authority to punish anyone who they see is committing a crime. A judge can only enforce a precedent, or their interpretation of a statute law, on those who appear in his/her courtroom. Because judges are working with the law in practice everyday they can identify weaknesses in existing laws and so indicate where change is needed. This awareness of the effectiveness of some laws is often lacking in parliaments, who are usually pre-occupied with other day-to-day concerns. Therefore it is left up to courts to change defined laws through altering or setting precedents, yet they still must operate within the framework and limits of the statute.
The law is a very broad and complex element of the government, yet certainly essential. One type of law making process alone would never suffice is today’s society, because values, people and the world in general are constantly changing. Common law needs to compliment the statutes, so that the guilty are punished and the victim feels justice has been served, while simultaneously, the public are satisfied with decisions, and the community can function in an orderly manner.
