Do Judges Make Law

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University of London

Common Law Reasoning and Institutions

Essay Title: ‘Judicial precedent is best understood as a practice of the courts and not as a set of binding rules. As a practice it could be refined or changed by the courts as they wish.’

Student Number: 090500532

Candidate Number:L8000

The declaratory theory of English common law is that the function of the judge is to declare what has always been the correct legal position at common law. In carrying out this task judges should aim to treat like cases alike so as to bring certainty and consistency to the application of the law and for this purpose they should observe the doctrine of precedent based on the hierarchy of courts. This declaratory theory preserves the constitutional role of the judges and leaves the task of legislating to the Parliament.

The doctrine of judicial precedent is based on the principle of stare decisis which means that like cases should be treated alike. The general rule is that all courts are bound to follow decisions made by courts higher than themselves in the hierarchy and appellate courts are usually bound by their own previous decisions. This is known as the principle of stare rationibus decidendis; usually referred to as stare decisis. It translates simply as ‘Let the decision stand’. Stare rationibus decidendis is the more accurate statement because, as we shall see, it is the reasoning (rationibus) that is the vital binding element in judicial precedent. However, nobody actually refers to it this way. What stare decisis means in practice is that when a court makes a decision in a case then any courts which are of equal or lower status that must follow that previous decision if the case before them is similar to that earlier case. So, once one court has decided a matter other inferior courts are bound to follow that decision.

The practice of precedent was established in the mid-nineteenth century and reaffirmed in 1898 in London Street Tramways Co. ltd v London County Council. The motive was that it was felt that decisions of the highest appeal court should be final in the public attention so that there would be certainty and consistency in the law and an end to litigation (the speech of the Earl of Halsbury LC). But it is seemed that always it is not happening this way. Judges while making decisions have choices. There can be distinguishing, overruling, reversing or disapproving.

When judge finds that the material facts of the case he is deciding are sufficiently different for him to draw a similar decision between the present case and the previous precedent, he is not then bound by the previous case. This distinguished the case from Balfour v Balfour. Also in Merritt v Merritt it was held that the agreement was not just a domestic arrangement but meant as a legally enforceable contract. Overruling may occur where the decision in an earlier case is wrongly decided. In Hedley Byrne & co Ltd v Heller & Partners Ltd the judges follow overruling, this is where a court in a later case states that the legal rule decided in an earlier case has been strongly decided. This would normally happen when a court higher in the hierarchy over-rules a decision made by a lower court in a previous case.

The doctrine of judicial precedent has fallen victim to many conflicting arguments as to whether it is being followed as a strict set of rules or a mere practice of the judiciary to bring consistency and certainty. Therefore a concise discussion of these arguments is necessary before we come to any conclusion regarding this topic. We need to find out, is there anything which makes the precedent strict?

In UK the Parliament is the ultimate body that makes law. However, the judiciary also makes law by way of judicial pronouncements. Where the parliament is consisted by those people who are elected by the voters usually the citizens of UK, but judiciary is not elected. Under the English legal system, parliament...
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