INTRODUCTION:
Parliament, the supreme law-making body, has an unrestricted legislative power, and the laws it passes cannot be set aside by the courts. The role of judges, in relation to laws enacted by Parliament, is to interpret and apply them, rather than to pass judgment on whether they are good or bad laws. However, evidence has shown that they have a tendency to deviate from their ‘real roles’ and instead formulate laws on their own terms. Thus the real role of a judge in any legal system continues to be a phenomenon questioned by many. We must consider whether they are “authoritarian law-makers, or if their profession makes them mere declarers of the law” . In this essay, I will argue the ways that judges do make law as well as discussing the contrary.
The English legal system is ostensibly embedded on a foundation of a ‘high degree of certainty with adaptability’ based on a steady ‘mode’ of legal reasoning. This rests on four propositions
1.The strict supremacy of statute over judicial decisions and a tradition of literalism in statutory interpretation, 2. Where no legislation exists, the courts are bound by the doctrine of precedent in accordance with a strict hierarchy of judicial authority, 3. In the absence of a relevant precedent, the judges will be guided by legal principle and reasoning by analogy, and 4. There is clear way of distinguishing the ratio of a case…
A key feature of the unwritten constitution is ‘the Separation of Powers’. This exercises the idea of independence within ‘different functions of government’; it is represented by the legislature, the executive and the judiciary. Separating the three prevents a dangerous occurrence where power is entirely centralized in one group. Cooperating with one...
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...lection=journals&handle=hein.journals/hjlpp7&div=18&id=&page= accessed 14 February 2012
J. A. Holland & Julian Webb, Learning Legal Rules, (6th edn, Oxford 2006)
Jeremy Bentham, in ‘Truth v Ashhurst’ [1923] 5 Works 233
‘Judges Do Not Make Law – They Declare It’ http://www.essaycoursework.com/coursework/judges-do-not-make-law.php accessed 12 February 2012
Leslie G. Scarman, ‘Codification and Judge-made Law: A problem of co-existence’ [1967] 42(3) Indiana Law Journal http://www.repository.law.indiana.edu/ilj/vol42/iss3/3 accessed 12 February 2012
Lord Reid, The Judge as Law Maker (1972) J.S.P.T.L 22
Robert N. Clinton, ‘Judges Must Make Law: A Realistic Appraisal of the Judicial Function in a Democratic Society’ [1981-1982] 67 Iowa L. Rev. 711 http://heinonline.org/HOL/Page?handle=hein.journals/ilr67&div=38&g_sent=1&collection=journals accessed 12 February 2012
Oklahoma Press, 1977. http://www.o Steven Talos, Michael Liepner, and Gregory Dickinson. Understanding The Law Toronto: McGraw-Hill Ryerson Ltd, 1990. Black, Charles L. The People and the Court: Judicial Review in a Democracy.
Roach, K. (2008). Dialogic Judicial Review and Its Critics. In D. Dyzenhaus, S. Reibetanz Moreau, & A. Ripstein, Law and Morality: Readings in Legal Philosophy (3rd Edition ed., pp. 589-644). Toronto: University of Toronto Press.
The role of the judiciary is to interpret and apply the law, not to make it. In some cases an approach that gives slightly more emphasis to the text may be seen to be more in line with the judiciary’s constitutional position. The law is written in the words of the statutes, and Parliament has an obligation to express law correctly. The role of the court courts is not to ensure that Parliament hits the target every time, especially when the legislation does not clearly display those targets.
Parliamentary sovereignty, a core principle of the UK's constitution, essentially states that the Parliament is the ultimate legal authority, which possesses the power to create, modify or end any law. The judiciary cannot question its legislative competence, and a Parliament is not bound by former legislative provisions of earlier Parliaments. The ‘rule of law’ on the other hand, is a constitutional doctrine which primarily governs the operation of the legal system and the manner in which the powers of the state are exercised. However, since the Parliament is capable of making any law whatsoever, the concept of the rule of law poses a contradiction to the principle of parliamentary supremacy, entailing that Parliament is not bound by the Rule of Law, and it can exercise power arbitrarily.
Remy, Richard C., Gary E. Clayton, and John J. Patrick. "Supreme Court Cases." Civics Today. Columbus, Ohio: Glencoe, 2008. 796. Print.
Hall, Kermit L, eds. The Oxford guide to United States Supreme Court decisions New York: Oxford University Press, 1999.
Abadinsky, Howard. Law and Justice: An Introduction to the American Legal System. 6th ed. Upper Saddle River: Prentice Hall, 2008. Print.
This question is spilt into two parts the first part being the different processes which change law need to be examined and the second part being the question that the judiciary does not actively make laws besides in opportunistic ways. To assess these two questions we need to explain the different processes which lead to law reform, a look at the parliamentary system in making laws and changing laws, The judiciary system will be reviewed to look at the impact they have on law reform and how they interpret the laws and set out precedents through their interpretation. Institutions set up by the state such as the law committee have to be looked at their input in changing the law. External institutions such as the EU will need to be examined to see the role it plays in changing laws in the country and how the judiciary system is affected by the changes.
Introduction This submission will discuss the problems created by the Doctrine of Judicial Precedent and will attempt to find solutions to them. Whereas, English Law has formed over some 900 years it was not until the middle of the 19th Century that the modern Doctrine was ‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). Law is open to interpretation, all decisions made since the birth of the English Legal System, have had some form of impact whether it is beneficial or not The term ‘Judicial Precedent’ has at least two meanings, one of which is the process where Judges will follow the decisions of previously decided cases, the other is what is known as an ‘Original Precedent’ that is a case that creates and applies a new rule. Precedents are to be found in Law Reports and are divided up into ‘Binding’ and ‘Persuasive’.
In conclusion, the theories that have been examined in this paper have proffered various ways in determining what makes a law valid. These theories are persuasive on varying levels, and hence are not perfectly conclusive on this point. However, an analysis of these theories have allowed me the appreciate the nuances between each theory, as well as appreciate the fact that legal theory is a lot more tolerant of conflicting theories as compared to other areas of legal study.
United Kingdom is a country with a distinctive set of legal system. It is fairly different from other countries having civil law based legal systems. The legal system in the United Kingdom consists of various sources of law, where other civil law based countries rely only on a written set of law. European influences on the English Legal System came much later in near decades. This essay will aim to examine the development of the English Legal System by reviewing applications of various sources of law in the English Legal System furthermore to discuss the recent European influences on the law of England.
Firstly in this report, I will be giving the different definitions of rule of law by different philosophers; secondly, I will be applying the rule of law to the English Legal system and thirdly I will be explaining separation of powers with a focus on the impartial judiciary. Finally, I will be using cases to support every detailed point given.
The rule of law is thought to be one of the most fundamental doctrines of the constitution of the whole of the United Kingdom. The distinctive UK‘s constitution has influences previously on the judicial system too. Government and the legal systems in history have both been involved in rules and discretion and most of all the elimination of all discretionary power in which both of these are impossible and unwanted. The rule of law means in one sense, government by the law but obviously government is by the people as well as by the law. As soon as the governing people are added in, the government can’t then be by law on there own. Although the situation is not undoubtedly as the making of particular laws can be guided by open and relatively stable general laws that have been made. For the Rule of Law to have meaning in a democratic society, it has to mean that those who run it have comply with it for it to work; there must be no room for an “ends justifies the means”
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...
This paper is based loosely upon James C. Quarles’s article “Some Statutory Construction Problems and Approaches in Criminal Law”. In this article James questions the need for strict construction of criminal law in common law countries and whether courts should stick to rule of strict construction. Rule of strict construction of criminal statues has a long history, its origin is not very clear but it is said to have arisen even before the process of construction itself. A certain form of the doctrine might be found in Roman law, but it must have reached to its greatest usefulness in England because of the desirability of mitigating the severity of the early criminal law. Every jurisdiction has a body of criminal law consisting of “shall” and