The statement made above is true to a certain extent. The legal system in the United Kingdom is mainly based on The Doctrine of the Separation of Powers, which is written in the 18th century by a French philosopher called Montesquieu. Montesquieu, believed that in order to have a ‘fair’ legal system, the functions should be divided into 3 different bodies of power in a state. This was to prevent absolute power in either one person or a body of people. He believed that by giving one person or a body of people absolute power the state would be in danger of people having the ability to abuse this power and it would eventually lead to a dictatorship. To ensure that this would not happen, he suggested to separate the functions into three different bodies; the executive (government), legislature (parliament) and the Judiciary.
Theoretically the powers in Britain are generally well separated with each body being in charge of a different aspect. The executive (government) is in charge of making and proposing policies as to which laws should be brought in, the legislature (parliament) is put in charge of passing the laws proposed by the executive and bring them into effect, and the Judiciary is in charge of interpreting the meaning of these laws and apply these laws in court. In reality, however, these powers seem to overlap with each other quite often. The process of making the law is through passing Acts of Parliament and by use of delegated legislation. Judges use these acts to judge cases and apply it in court. However, nowadays, judges do not only apply these acts, but are also able to ‘make law’ themselves by using the doctrine of judicial precedent and statutory interpretation.
The doctrine of judicial precedent is the process ...
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...an lead to miss-interpretation of the act or legislation. It can result into laws being uncertain to different cases and can also lead to unjust decisions being ruled. With rules such as the literal rule, this interpretation may lead to an absurd result Re Sigsworth (1935).
To conclude, judges are found to be usurping the legislative function to a certain extent, as they do have to ability to adjust and create law. This however, does not necessarily mean that it has a negative effect on the legal system in the UK. As discussed above, the interpretation of statues by judges has both its negative and positive effects. Without the interpretation of judges there would be the assumption that every Act is perfectly drafted, when in fact, most Acts are not. Some Acts have large gaps where words are used in broad terms, this leaves the judges to fill these gaps themselves
The first model to the judicial decision making is the attitudinal model. This model of judicial decision making speculates that a judge’s behavior can be predicted mostly by his or her policy attitudes. It perceives judges of the court as motivated by policy goals and unconstrained by the law. Therefore, they decide cases according to moral preference rather than by the meaning or intention of legal texts. One review of the attitudinal model is the fact it relied heavily on unreliable evidence. Also, the attitudinal model of decision making does not always interpret from explaining justice’s decisions at the Supreme Court. Most legal practitioners such as lawyers and judges are likely to think that a very simple attitudinal model is missing
Nowadays, the Australian legal system has three powers, which are legislative, executive and judicial. Legislative power is in charge of making the laws; subsequently those laws will be passed to the executive power to administer the laws it...
...09). Congress is supposed to enact laws, and the ability of judges to modify them with court decisions shows how their power may extend past what the system of checks and balances had intended. The last aspect that shows how powerful this branch may be is the judges. Originally, the lifetime appointment was supposed to relieve them of pressures when deciding cases, but this serves as a double edged sword. Judges without fear of retribution shows the amount of power that they posses. Overall, the development of judicial review, judges lifetime appointment, and ability to modify laws has led to an unbalance of power by the Judicial Branch among the three branches of government.
The late 1700s and early 1800s were a time full of expansion and innovation in the United States of America. The country was getting bigger, both in population and in geographic size, and the government was getting more powerful as well. This was because of the new Constitution that was put into place in 1787 that replaced the Articles of Confederation and took most of the power away from the individual states and gave it to the federal government. When the Constitution was ratified, both Brutus (believed to be Robert Yates), and Alexander Hamilton were in a debate over the potential power of the federal government, and more specifically, the power of the Supreme Court in Federalist 78 and Brutus’ eleventh and twelfth letters. Alexander Hamilton supported the proposed system and expressed his belief that the judiciary did not have too much power by any means. Brutus was more concerned that the court would simply side with the government and would therefore have too much power over the states. In 1803 one of the biggest landmark cases ever reached the Court, Marbury v. Madison. This case was not directly about the power of the court, but similar to most Supreme Court cases, it turned into a debate about something more crucial. By reading John Marshall’s opinion on the Marbury v. Madison case, it is apparent that Brutus originally had the better idea about the Supreme Court’s power due to his overwhelming wisdom and excellent foresight into what the judiciary would eventually become.
The courtroom is a ritualised space, involving costume, language, spatial organisation and so on, and courts, therefore, constitute performative exercises of power. Discuss some of the ways in which courts demonstrate power and/or power relations.
Magistrates had a lot of power when ruling. They had the authority to torture a criminal to their liking as well as order subjects to the court. Magistrates had a few loyal and obedient lieutenants to help them in their work; "The lieutenants are the judge's legmen. He sends them out to make discreet inquires; he tells them to interview witnesses, trail suspects, find out the hiding place of a criminal and arrest him" (Preface, XI). The purpose of each of his servants was different; they included "former 'brothers of the green woods'…a reformed itinerant confidence man…an elderly retainer of the judge's family" (Preface, XI). With this small army of his, Judge Dee was able to accomplish many things. Judge Dee was an effective magistrate because
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.
Exploring To Which Extent the Parliament is Supreme There are two sides to this argument, one obviously defending that Parliament is Supreme in the law making process, and has utmost authority, the other stating the constraints on Parliament and there it is not supreme. Within Britain, parliament is the supreme law making body. The idea behind this is that the people select parliament and, therefore, the people make the law. We describe this as PARLIAMENTARY SOVEREIGNITY, That is to say that Parliament is the highest power in the land, and shall not be challenged. An example that shows parliamentary supremacy is Cheney .vs.
The judiciary system is an incredibly important part of our government. It serves the purpose of interpreting and deciding if laws are constitutional. Without someone to make these decisions, our country would not be strong. However, the people in the judicial system have two drastically different types of systems in they way they decide if a law is constitutional or not, or if it passes our governments standards. These different ideas on interpreting laws are called Judicial restraint and Judicial activism.
Ministerial Accountability Under the UK Constitution “The prerogative has allowed powers to move from Monarch to Ministers without Parliament having a say in how they are exercised. This should no longer be acceptable to Parliament or the people.” Discuss whether ministerial accountability is adequately addressed under the UK constitution The Royal Prerogative has allowed a wide array of discretionary powers to be delegated from the Monarch to ministers without a need to seek parliamentary approval. This system is both unjust and undemocratic as it leaves a number of largely unchecked powers in the hands of a privileged few. These powers, including the ability to ratify treaties, declare war, regulate the civil service and appoint ministers, have a profound effect on the lives of the citizens of the United Kingdom and therefore it is necessary for them to be regulated by Parliament, the democratically elected body of the British people.
The Selection, Training and Role of Magistrates in the English Legal System Lay magistrates are unqualified, part-time and unpaid profesionals who are chosen to serve in the magistrates court, yet they deal with the vast majority of cases in the legal system. They do not hear cases on their own but sit as a bench or panel of two or three other magistrates. The use of such unqualified people to judge cases is open to criticism. Magistrates sit in a magistrates court, usually in a bench of three.
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 a clear way of distinguishing the ratio of a case. A key feature of the unwritten constitution is ‘the separation of powers’.
Judicial review seeks to enforce and uphold constitutional doctrines which govern the UK’s uncodified constitution by scrutinising administrative action. One constitutional function of judicial review is to enforce the rule of law. It can be argued, in defining the rule of law as “negative value...designed to minimised the harm to freedom and dignity which the law may cause in its pursuit of its goals” Joseph Raz characterised judicial review. The principle of which states the executive is to be ruled by the law and subject to it.
To begin, we must understand the meaning of the rule of law and why the UK courts implement this constitutional principle in day to day practice. British jurist and constitutional theorist A.V. Dicey paved the way for much of our understanding of the rule of law we know today; giving a strong starting point for academics such as Lord Bingham and Joseph Raz whom later on developed the formal and substantive theories of the rule of law. Dicey has three key principles: no punishment unless there is a breach of the law; Law should not be exercised arbitrarily; and there should be a consistency in the creation of law. Dicey simply means that an individual should be aware of laws which apply to them, they are free to act as they please, whether they
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”