Do Judges Make Law or Merely Interpret Laws?

Topics: Common law, Law, Stare decisis Pages: 8 (3013 words) Published: November 6, 2012
Do judges make law or merely play a role in interpreting law? Discuss

Judges do both. Judges interpret the statue law and they make the common law. There are two types of law one would be the primary law, which is also known as the statue law and the secondary law, which is also known as the common law. For the primary law it is created by the legislature, which is the parliament as the parliament has the power to make the statue because the people elected them. So the judges interpret the primary law, which was created by the legislature. For the secondary law, which is the common law, the judges make this common law base on the cases and it is developed extremely slow and cautious and incremental bit by they would need to consider the principle and the loopholes in the law that they might be create or they could also make it so that it only applies in that particular case. Primary law always trumps secondary law meaning if there is a primary law the court should always use the primary law for the case. If there isn’t any primary law for the particular case then the court shall use the secondary law by referring the previous cases. They would interpret the existing statue law and the previous decision of higher ranking courts from there they would then decide whether to use the existing law or create the law by making legal principles which courts lower down the hierarchy are bound to follow depending on the case which they are attending to. This is so that they could be consistent with their ruling and it would be fair.

Back in the past, when the king’s representatives travelled from London to the provinces, checking the procedures in the local courts. They became the judges as time pass and the decisions that they make in the court that they trial was then recorded down and subsequent judges that passes through the town and trialed the case use the same decisions that the previous judge made so as to remain consistent on the law and so as time passes all this decisions that the king’s representatives made became common in the country and so they were soon known as the common law. These were the times where common law was first created by judges abiding to the legal rules that Henry II had set.

A statue is an act of parliament. The parliament has the power to enact, or revoke, any new law it pleases and that the courts cannot question the validity of this law. Even parliament cannot limit the power of a successive parliament. The government department, which consists of business, innovation and skills, propose legislation for approval. Which the parliamentary draftsmen would then draw a bill up and the bill starts its parliamentary journey. The bill must pass through the house of parliament before it can become a statue. There are a few stages to the approval of bill becoming a statue. The initial stage is the first reading, the title of the bill and the announcing of the second reading. At the second reading the principles that the bill is trying to provide are being debated. If the bill passes this stage by gaining more votes from the MPs it would be referred to the standing committee which would then consider the details of the bills and recommends amendments. And then it would proceed to the third reading where it is similar to the first stage as it is a short stage where only minor amendments to the content of the bill, rather than amendments to the general principle of the bill, can be made. The bill is then sent to the house of lord and house of parliament where the whole process would be repeated. After it passes through both houses it will be sent to the royal assent where it will become a statue, which the court must enforce.

When the judges are interpreting a statue, they uses canons of interpretation. The court is guided by three approaches. They are known as the literal rule, the golden rule and the mischief rule. Firstly, would be the literal rule. When the literal rule is applied, words...
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