Bushra Khanom D1
Within this assignment I will be evaluating the role of judiciary in the formulation and the
interpretation of legal rules
Role of judges in formulating legal rules
Certainty:
This allows individuals to know and understand what the law is, this is by allowing lawyers
to guess the outcome of a case. If the system of binding precedent was not put into place
then people would not be aware of whether or not a law would stay the same as why when
they would be planning for the future, it could be a risk. It is essential that the law is
predictable or else the whole legal system would not be able to work effectively. Lawyers
would need to be able to advise their client to the situation and what is expected to happen,
this is so that the client is organised and ready for what will be happening. This is shown in
the case of R v Emmett where the defendant had consensually suffocated his wife, during
the court case the judge had referred to brown to enable them to decide that consent was
not a form of defence in this case. This is why if a case comes up where a person uses their
defence to be forced by someone else to kill a person, the lawyer would advise them that,
duress cannot be used as a defence due to the case of R v Emmett.
Time saving:
Precedent only saves time for two main reasons this includes that if it makes the law more
predictable, therefore there are many individuals who choose not to go to court, this results
to them not wasting any of the courts time also judges are able to give the verdict of a case
quickly if there has been a case beforehand that has similar facts, which makes it easier for
the judge to make a decision. But when a principle has been established cases which have
very similar facts to one another it is unlikely that it would go through the long process of
litigation.
Flexibility (distinguishing)
This is a type of method all judges use to avoid using any sorts of binding precedent. This
means that no two cases would have the same types of facts, with some cases the judge is
not bound to follow any precedent as it can be distinguished and may form a precedent
itself. An example of this is the case of Balfour V Balfour where the husband agreed to pay
the wife £30 every month but this agreement was not a legally binding decision. But the
couple are living together which means ‘living in amity’. As a result of this the wife failed to
enforce the agreement against her husband, which meant that he did not have to pay his
wife. But on the other hand in the case of Merritt v Merritt, an agreement was made
between the husband and the wife after they had separated, he agreed to sign over the
house if she paid the mortgage, she did pay but the husband id refuse to hand over the
house. Relying on the principle of Balfour case he stated that their agreement was not
legally binding, the court of appeal disagreed with the argument of distinguishing Balfour,
Within this assignment I will be evaluating the role of judiciary in the formulation and the
interpretation of legal rules
Role of judges in formulating legal rules
Certainty:
This allows individuals to know and understand what the law is, this is by allowing lawyers
to guess the outcome of a case. If the system of binding precedent was not put into place
then people would not be aware of whether or not a law would stay the same as why when
they would be planning for the future, it could be a risk. It is essential that the law is
predictable or else the whole legal system would not be able to work effectively. Lawyers
would need to be able to advise their client to the situation and what is expected to happen,
this is so that the client is organised and ready for what will be happening. This is shown in
the case of R v Emmett where the defendant had consensually suffocated his wife, during
the court case the judge had referred to brown to enable them to decide that consent was
not a form of defence in this case. This is why if a case comes up where a person uses their
defence to be forced by someone else to kill a person, the lawyer would advise them that,
duress cannot be used as a defence due to the case of R v Emmett.
Time saving:
Precedent only saves time for two main reasons this includes that if it makes the law more
predictable, therefore there are many individuals who choose not to go to court, this results
to them not wasting any of the courts time also judges are able to give the verdict of a case
quickly if there has been a case beforehand that has similar facts, which makes it easier for
the judge to make a decision. But when a principle has been established cases which have
very similar facts to one another it is unlikely that it would go through the long process of
litigation.
Flexibility (distinguishing)
This is a type of method all judges use to avoid using any sorts of binding precedent. This
means that no two cases would have the same types of facts, with some cases the judge is
not bound to follow any precedent as it can be distinguished and may form a precedent
itself. An example of this is the case of Balfour V Balfour where the husband agreed to pay
the wife £30 every month but this agreement was not a legally binding decision. But the
couple are living together which means ‘living in amity’. As a result of this the wife failed to
enforce the agreement against her husband, which meant that he did not have to pay his
wife. But on the other hand in the case of Merritt v Merritt, an agreement was made
between the husband and the wife after they had separated, he agreed to sign over the
house if she paid the mortgage, she did pay but the husband id refuse to hand over the
house. Relying on the principle of Balfour case he stated that their agreement was not
legally binding, the court of appeal disagreed with the argument of distinguishing Balfour,
