Judge Made Law

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The tradition view of the law making process is that Parliament makes law through Acts of Parliament and delegated legislation and judges merely apply it in court to the cases presented before them. According to the declaratory doctrine of common law, judges do not make law. There are, in Blackstone’s word, “judge is not delegated to pronounce new law, but maintain and expound the old one.” As such, it is to be said that judges are merely declaring the law and not making new laws. Lord Esher in Willis v Baddeley stated :” There is no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable.” Ronald Dworkin, a legal philosopher, is strongly against the law making power of the judges. He argue, that if a judge makes new law and applies retrospectively in the case before him, then the losing party will be punished, not because of he dishonored some duty he had, but rather a new duty created after the event. He states that judges have no discretion in law making, they are merely implementing it. He also stated that the law was a seamless web of principles and judges have to follow these principles. Ronald Dworkin also argue that, elected representatives who are responsible to the people should govern a community and when judge make law it will be an advance on legislative power because judges are appointed and not accountable to the people. In R v Clegg, the House of Lords refused to exercise any legislative powers. The House held that on a charge of murder, there was no distinction between the use of excessive force in self defence and the use of force in crime prevention. Therefore, it was held that the House could not change the law in relation to reducing the charge of murder to manslaughter. Such changes, it was held, should be a matter for Parliament to decide upon.
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