Judicial Law-Making

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The independence of the judiciary was ensured by the act of settlement 1700, which transferred the power to sack judges from the crown to the parliament. Consequently, judges should theoretically make their decisions based purely on the logical deductions of precedent, uninfluenced by political or career considerations. The eighteenth century legal commentator, William Blackstone, introduced the declaratory theory of law, stating that judges do not make law, but merely, by the rules of precedence, discover and declare the law that has always been: 'the judge being sworn to determine, not according to his private sentiments...not according to his own private judgement, but according to the known laws and customs of the land: not delegated to pronounce a new law, but to maintain an expound the old one'. Blackstone does not accept that precedent does not even offer a choice between two or more interpretations of the law: where a bad decision is made, he states, the new one that reverses or overrules it is not a new law, nor a statement that the old decision was bad law, but a declaration that the previous decision was “not law”, in other words that it was the wrong answer. His view presupposes that there is always one right answer, to be deduced from the objective study of precedence.

Today, however, this position is considered somewhat unrealistic. If the operation of precedent is the precise science Blackstone suggested, a large majority of cases in the higher courts would never come to court at all. The lawyer's concern could simply look up the relevant case law and predict what the decision would be, then advise whichever of the clients would be bound to lose not to bother bringing or fighting the case. In a civil case, or any appeal case, no good lawyer would advise a client to bring or defend the case that they had no chance of winning. Therefore, where such a case is contested, it can be assumed that, unless one of the lawyers has made a mistake, it could go either way, and still be in accordance with the law. In practice, thus, judges' decisions may not be as neutral as Blackstone's declaratory theory suggests: they have to make choices which are by no means spelled out by precedent. Yet, rather than openly stating that they are choosing between two or more equally relevant precedents, the courts find ways to avoid awkward ones, which give them the impression that the precedents they do choose to follow are the only ones they could possibly apply.

Ronald Dworkin argues that judges have no real discretion in making case law. He sees law as a seamless web of principles, which supply a right answer - and only one - to every possible problem. Dworkin reasons that although stated legal rules may "run out" (in the sense of not being directly applicable to a new case) legal principles never do, and therefore judges never need to use their own discretion. In his book, 'laws' empire 1986', professor Dworkin claims that judges first look at previous cases, and from those deduce which principles could be said to apply to the case for them. They then consult their own sense of justice as to which apply, and also consider what the communities' view of justice dictates. Where the judges' view and that of the community coincide, there is no problem, but if they conflict, the judges then ask themselves whether or not it would be fair to impose their own sense of justice over that of the community. Dworkin calls this the interpretive approach and, although it may appear to involve a series of choices, he considers that the legal principles underlying the decisions mean that in the end, only one result could possibly surface from any one case. Dworkin's approach has been heavily criticised as being unrealistic: opponents believe that judges do not consider principles of justice but take a much more pragmatic approach, looking at the facts of the case, not the principles.

Critical legal theorists, like as David Kairys (1998)...
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