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evaluate the role of the judiciary in the formulation and interpretation of legal rules
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BTEC
PEARSON (PEARSON)
Applied Law
Unit 2 - Understanding Law Making
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Unit 2 – D1
Alex omidvar
Evaluate the role of the Judiciary in the formulation and interpretation of legal rules
Introduction
This assignment focuses on the judges’ role in formulation of legal rules while evaluating their
effectiveness. There are number of cases included within thus assignment as interpretation cannot exist
without case laws. Furthermore, the judges’ role in interpretation of rules was also explored and
evaluated fully. As it is clearly illustrated in the assignment, judges are extremely important in making
laws as well as interpreting them as they hold such an authority especially in higher courts in the
hierarchy that they can modify or even create new laws where appropriate. Judges have been very
successful in developing new laws through creativity in order to avoid other courts making the same
mistakes. I believe that the formulation of law is more effective than the role of parliament in creating
laws as judges are the experts who are very aware of the outcome. They also make these laws within
cases which is a real life example of a law being applied to someone whereas the members of
parliament only vote for a law but might not even consider the possible outcome.
Evaluation of Judges’ role in Formulation of legal rules
Judicial precedent gives judges the ability to alter and establish new laws, whilst also giving the
guidelines and often the force to which judges have to follow rulings in the past cases. The declaratory
approach recommended by judges such as William Blackstone. Furthermore, states judges don’t always
declare the meaning of the law in cases and do not create or alter any new law or the law that is already
existed. From this perspective, judges should not be able to develop new law, and that the duty should
be left to parliament to decide. Some people argue that judges should implement the principle so called
Stare Decisis, which essentially means “stand by the decision". This method is already in practice within
the current concepts of law being implemented in such a way. This is illustrated by the fact that higher
courts within the hierarchy make precedent which courts in lower in the hierarchy have to strictly
follow. For instance, a decision made within the Supreme Court must be followed for bound by the
Crown and Magistrates Court, as the Supreme Court has the authority over other courts in the UK.
Moreover, the neighbour principle developed in Donoghue v Stevenson. This was followed by the lower
court in Grant v Australian knitting Mills. The issue this this approach is that it does not allow any
flexibility for the lower courts, and therefore judges in the supreme court who hold the supreme
authority can make new laws as they wish.
Lord Denning stated that “there are two types of judges in law: ‘bold souls’ and ‘timid spirits’. He said
that bold soul judges are more adventurous and creative when it comes to developing and creating
new and existing laws, whereas timid souls are more inclined to follow and obey the precedents set
out the courts higher in the hierarchy.” This statement has amplified the argument as to whether
judges should be more “bold soul” or “timid spirit”
From my perspective, the concept of the Stare Decisis can be seen as undemocratic and ineffective. It is
undemocratic because it does not allow any flexibility to the lower courts. The Supreme Court judges
are not “Gods” therefore they can make laws that might not be suitable for certain areas. Also
ineffective at some aspects because every case is unique and the results of following the exact law can
create aberrations.
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