Judicial Creativity - Law

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Analyse the extent to which judges are able to develop the law through the operation of the doctrine of judicial precedent and in the interpretation of statutes. Discuss whether judges should be able to develop the law (30 marks+5marks for AO3)

A French philosopher, Montesquieu, introduced the separation of powers theory in the 18th century. He aimed to prevent dictatorship by simply separating law-making power between the three branches, the executive, legislature and judiciary. Parliament are supposed to be the power that creates the law that the government have proposed which leaves the judges to apply it to cases. However, in reality do judges have a scope to be creative and develop our law far more than just applying it? The doctrine of precedent is based upon the stare decisis principle; this means that judges must stand by what has already been decided. They must abide by the precedents from the courts above them; this suggests little creativity as the majority of courts are bound to follow precedents previously made. The only creativity they have is dependant on new case law, which is extremely hard to come across. Original precedents give judges maximum creativity, due to their being no pre-existing cases or statutes so judges can create brand new law. Airedale NHS trust v Bland is a prime example of where a completely new point of law was created, the precedent created was that doctors do not have a duty of act if it is in the patient’s best interests not to do so and therefore they cannot be convicted on murder. The judge in this case had maximum creativity; he was able to create a new point of law from scratch. Much of our law today is judge made, such as murder and the non-fatal offences; this illustrates the maximum creativity judges can have. Overall using original precedents gives Judges a lot of creativity, they do not have to follow precedents or statutes and they can produce whole areas of law; such as the tort of negligence created by Lord Atkins. It is positive that judges should create laws as they have first-hand knowledge of our modern society and how the law needs to apply fairly to all real life cases. It is also a quick solution as the law can be created by the end of a trial rather than having to go through parliament, this means that the law can quickly update with our society. There is not always maximum creativity however, in order to create an original precedent there must be a case that does not previously have a point of law and it must have original circumstances. In modern society, these cases are very limited and this drastically reduces the creativity that judges have through original precedents. Some judges subscribe to a theory known as the ‘declaratory theory’ this states that judges merely declare the law and do not actually create it. Lord Esher is a judge who believes in this theory; he stated, “There is no such thing as judge-made law for the judges do not make law”. The belief in this theory originates from the separation of powers; judges should only apply law so that they do not become too powerful. In addition, parliament have parliamentary supremacy, due to being voted in they represent the public and therefore should have the most power. Some judges however are more willing to accept that they do make law, Lord Reid said that the idea that judges do not make law is a “fairy tale”, Lord Browne Wilkinson supported Lord Reid and stated, “Judges make law (and change it). Common law is totally judge made and judges changing the law is the only way to keep law relevant in a changing world”. The extent of judge’s creativity is disagreed upon, Lord Devlin says that judges can make law but should only do so to reflect the public consensus. This is known as activist law making, marital rape was made illegal in R v R because the view on women had changed in society. Women’s rights group had made such laws an offence to society. Activist law making gives judges a greater extent to...
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