Do Judges Make Laws?

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Parliamentary sovereignty is the key stone in the British Constitution. If judges were to make law then they would be contradicting this doctrine. The legislative supremacy disqualifies the courts power to review the validity of legislation, refer to British Railway Board v Pickin . The objective of judges is to not make law but simply declare what the law had always been. Acts of Parliament are the highest form of authority and the courts hands are tied by it. But through the doctrine of precedent, the judicial function of declaring and applying the law has a ‘quasi-legislative effect’. The rules of precedent themselves are judge made, except where a statute has intervened. Occasionally, judges have to decide on a case where there is no previous legal decision or law for the judge to use. This leads to judges technically making law through original precedent. The doctrine of Precedent is the process whereby judges of a lower court are bound to follow a decision on a point already made by a judge in a higher court. It is based on the maxim “stare decisis” which means stand by what has been decided. To satisfy the conditions in the doctrine, the previous point must have been the “Ratio decidendi” (reasons for deciding). The previous court must have been at a higher level than the present or at the same level. The rest of the decisions are “obiter dicta” (things said by the way) not strictly binding but merely persuasive. Though the rules of precedent are applied rigidly and don’t appear to allow scope for creativity, there are ways in which the doctrine of precedent can be avoided, thus allowing judges to create new law. The 1966 Practice Statement allows the House of Lord to ‘update’ the law, thus extending the power of the Law Lords to ‘create’ law. The court of Appeal is bound by their past decisions. This principle was laid down in the case of Young v Bristol Aeroplane Co. Ltd . There are 3 exceptions that allowed them to not obey their previous decisions. “First, where there are conflicting decisions in past Court of Appeal cases; the court can choose which one it will follow and which one it will reject. Second there is a decision of the House of Lords (now Supreme Court) which effectively overrules a Court of Appeal decision; the court of appeal must follow the decision of the House of Lords. Lastly, the decision was made per incuriam.” The last exception gave the Court of Appeal limited powers to change or create law. The court of Appeal is divided into two divisions; criminal and civil. The criminal division may adopt the exceptions from Young’s case. It is uncommon for the exceptions to be used, however it provides the flexibility the Court requires. The method of distinguishing can be used by any judge of any courts to avoid following a past decision. It means that the judge finds the material facts of the case are completely fresh for him to draw a distinction between the present case and the previous precedent. He is not bound by the previous case. A large portion of the law today is owed by principles laid down by judges themselves. Judicial decisions have a strong influence on the law of contract, tort and criminal law. For example without consideration an agreement is not enforceable; refer to Combe v Combe .The judges also implemented the minors capacity in a contract. In Klienwort Benson ltd v Lincoln City Council , the courts have not refrained from making innovative decisions that money paid under a mistake of law was not recoverable. Most of the rules which govern the formation of contracts come from decided cases. The established tort of negligence today originated from the principles laid down by Lord Atkin in Donoghue v Stevenson and this concept has been applied and developed by other judges. In medical situations, if the patient understood and is capable of exercising his own judgment can withhold his consent on artificial feeding which was maintaining his life. Refer to Airedale NHS Trust v...
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