Do Judges Make Law

Topics: Common law, Law, Precedent Pages: 6 (2123 words) Published: April 22, 2013
A law is an obligatory rule of conduct imposed and enforced by the sovereign[1]. Therefore the law is the body of principles recognized and enforced by the state in the application of justice. The law is mainly made by a parliament, a legislative body given power by the constitution to draft law. However in the last few decades there has been a notion that judges make law.A judge is a public official appointed or elected to hear and decide legal matters in court[2], Judges exercise judicial power. This involves making binding decisions affecting the rights and duties of citizens and institutions. In carrying out this task, a judge can use any of the following three sources of Ugandan law, Acts of Parliament or legislation, the common law, or previous decisions by the courts and a constitution Do judges make law?

To ask the question “do judges make law?” Implies that perhaps to some extent they do make law.  A great deal of controversy has centered on this question as to how far judges can legitimately make law although a great number such as lord Bentham have referred to it as a “childish fiction” thus judges cannot make law. Many other scholars more so those that are followers of the realist school of thought have placed absolute emphasis on the discretion of judges and relegated the "rules" to an obscure position. It can however not be denied looking closely at the present legal system that judges have played a dominant role in moulding the doctrines of the present law for example the common law which is also referred to as judge made law. Nevertheless today no informed observer disputes that judges do especially those of the Supreme Court make law. In the same way the likes of lord Denning moulded the doctrines of the law of contract and otherwise. To answer if judge make law lets its crucial to analyse how they do so. The application of precedent by judges, whether they are developing the common law (for e.g. in areas such as negligence or murder) is the main mechanism whereby judges make law. Precedents are legal principles, created by a court decision, which provides an example or authority for judges deciding similar issues later. Generally, decisions of higher courts are mandatory precedent on lower courts that is; the principle announced by a higher court must be followed in later cases.Occasionally, judges are called upon to give a ruling or make a decision when faced with a situation for which there seems to be no precedent or any guiding rule. In these circumstances, judges can be said to be formulating original precedent thereby using his own discretion regarding when he thinks rules need to be applied, changed, improved, or abolished.  In A.G v Butterwort[3] lord Denning states that; “It may be in the books, but if this be so all I can say is that thee sooner we make it the better”.  Therefore a judge in using his discretion the phrase commonly used here is that he decides not on precedent but on principle, the difference is that in one case he is applying a principle illustrated by a previous example, in the other case he is employing a case not previously formulated but consonant with the whole doctrine of law and justice. Further because statutes and common law rules are often too vague and unclear it is often inevitable in "hard cases" for a judge to create new law by deciding cases. The decision of courts of justice when exactly in point with a case before the court are generally held to have a binding authority, as well to keep the scale of justice even and steady because the law in that case has been solemnly declared and determined. Judges further make law through statutory interpretation. The trend has always been that the legislature makes the law while the judges interpret it. Legislation may sometimes be ambiguous or unclear.  When this occurs, a court will need to decide between different interpretations of legislation. The common law is judge made law.  It has been developed by the...
Continue Reading

Please join StudyMode to read the full document

You May Also Find These Documents Helpful

  • Essay on do judges make law
  • Do Judges Make Laws? Essay
  • Essay about Do Judge Make Laws?
  • Do Judges Make Law? Essay
  • Do Judges Make Law Essay
  • Do Judges Make Law or Merely Interpret Laws? Essay
  • Do Judges Make Law Essay
  • Judges Essay

Become a StudyMode Member

Sign Up - It's Free