Judicial Creativity

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Judicial creativity
Judges are unable to develop the law as it would be considered unfair. If a defendant commits an act which is not considered criminal, but the judge then decides that it is, therefore changing the law, this would be considered unfair for the defendant. This would be seen as the retrospective effect. Parliament makes the law, following a lengthy process, and then the judges must follow parliament’s decision. They must follow precedent of higher court judges. This is known as ratio decidendi. The doctrine of precedent is based on stare decisis, meaning to stand by what has already been decided.

On the other hand, judges can be creative. For example, judges can use distinguishing to develop the law. This is where judges find significant differences between cases. This was seen in Balfour Vs Balfour and Merritt Vs Merritt where the judges compared the facts of the case and noted that in Balfour Vs Balfour the couple were married when they made the arrangement whereas in Merritt Vs Merritt they were already separated, therefore creating a difference within the situations.

Another way judges can be creative is through the use of dissenting judgement. This is where the judges take opposing views of the case and then in a later case, the judge can follow the view of a minority judge. This was seen in the cases of Candler Vs Crane Christmas 1951 and Hedley Byrne V Heller 1964. In the case of Candler, 2 judges came to the decision and the final judge opposed it. They went with the majority vote but this allowed the judge in Hedley to follow the precedent of the 3rd judge.

Judges can be creative by using original precedent. This is where new law us created where there isn’t a law to follow. The case of Hunters and others V Canary Wharf explains how there was an issue with the positioning of a building preventing TV signals getting to homes. The judge created the law in favour of Canary Wharf as there was no precedent to follow. Obita dicta...
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