Judges Must Make Law Essay

Judges Must Make Law Essay

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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

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