Summary Do Judge Make Law? Judicial Law Making (full notes for essay with latest updates)
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Legal System and Method (LA1031)
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UOL
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Learning Legal Rules
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DO JUDGE MAKE LAW
Intro
The principle of stare decisis or binding precedent serves the objectives of predictability, consistency and
fairness with a common law system. Without binding precedent, there is a risk of conflicting decision and
uncertainty. On the other hand, too rigid adherence to precedent can lead to rigidity in the law. The
English common law approach to precedent provides a balance between predictability and flexibility.
While most judges see themselves constrained by binding precedent, there is scope within the rules for
the development of common law principles, for correction of errors and for the making of new law, albeit
in a measured and incremental way.
There are two schools of thought as to how it can constitutionally be possible for the judiciary to act in
this manner. The first is the most obvious but equally the most constitutionally concerning theory that
the judges simple created new law and then retrospectively applied it to the event in question, which is
judicial activism. The second of school of thought is the least applicable in terms of academic sway but is
the most compatible with the principle of the English judicial system. This is the application of the
declaratory theory of law, whereby the judges in this case were simply stating the law as it always has
been.
Judges should not make Law
William Blackstone was in favour of the declaratory theory of law in which he suggests that judges do not
make law, but merely by the rule of precedent, discover and declare the law that has always been.
Therefore, judges are only law finders means they are only to declare what the law is and therefore are
not law creators. The theoretical ideal of the declaratory theory seems to be in line with the rule of pure
separation of power whereby there should not be an overlap between the three organ of the state
namely, the judiciary, legislature and executive. This theory also respects parliamentary sovereignty which
is the sole law-making body.
Furthermore, Lord Devlin states that judges should not be social reformers or professionally concerned
with social justice. The rationale behind this is perhaps due to the fact that the judges should not be
confused with the role that is undertaken by them and ultimately, the job of reflecting social changes and
view depends on the law or act in which the parliament enacts. Evidently, laws made by judges may be
flawed due to the fact that they are unelected and unrepresentative of the society as most of them are
white, male, middle-age, Oxbridge graduates and generally from a privileged background. Besides, when
dealing with matters of policies which are not strictly legal issue, judges should leave the matter for
Parliament to handle.
In contrast, William Blackstone provide that judges are “the living oracles who must decide in all cases of
doubt”. In response to that, it is believed that a judge expresses a part of the total imminent wisdom of
law which is assumed to be already existent before his decision. Therefore, where a judge reaches a
decision on a legal problem never before addressed by a common law court, he does it not as an original
author of a new legal principle but as a representative of a collective wisdom greater than his own. In light
of deciding based on a collective wisdom it is submitted that this is a reflection of the society as whole.
Hence, a judge can be seen as a spokesman for the community about its law, but a particularly
authoritative spokesman.
Interestingly, Dworkin utilised the idea of a chain novel where he sees judges as authors and critics and
they should be motivated to make the novel “the best” it can be as each judge or author will have the task
of writing his chapter in order to construct the best novel (holistic ideal of interpretation of alw) in
situations of deciding hard cases. However, realistically, it is believed that as time passes, the generic traits
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