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Do Judges Make Law?

By | May 2011
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DO JUDGES MAKE LAW?

There are two main sources of English Law- legislation and cases. When interpreting legislation judges must ascertain the intention of Parliament and, except insofar as they apply the mischief rule of interpretation, they do not make law. Traditionally and due to the doctrine of the separation of powers judicial role is really not properly legislative at all, but consist merely in stating what the existing law actually is, and interpreting authoritatively doubtful points as they arise. This traditional approach of common law, which insisted that the judges had no power whatever to make law but simply ‘declared’ it as it had always been. Judges were regarded as specially qualified exponents and interpreters rather than the creators of the law.

The assumption was that the common law was a complete system of legal rules and principles sufficient to meet any fresh combination of facts that might be presented to the court, and that judges did not make new law.

By the (18th century), it was manifestly understood that the idea of judges doing no more than declare the law was a hollow pretence, and this idea was roundly stigmatised by both Benthem and Austin as a childish fiction.

To suggest that Judges make law is to endow them with an unrestricted power of laying down abstract principles, but they have no such unlimited power. Such legislative power as a judge may possess is necessarily limited to the facts of the case before him, and as a corollary, his decision will be law only in so far as it may be necessary for his actual decision. The ration decidendi is the essence and the rule and all else is obiter dicta and will not bind Judges in future cases. A Judge has no freedom of choice, since statutes or precedents must limit his action and although a Judge may have Power to regard either he has no right to do so and in so far as he does, he violates the law.

Judges help to develop law but cannot be said to legislate since the common...
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