DOCTRINE OF PRECEDENT - LAW MAKING POTENTIAL
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Judicial Precedent - Lecture Notes #1
THE JUDGES' ROLE IN PRECEDENT
The old view of the judges' role was that they were merely 'declaring' the existing law (the 'declaratory theory'). Lord Esher stated in Willis v Baddeley  2 QB 324: "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." The modern view is that judges do make law. Lord Radcliffe said (Not in Feather Beds, p215, 1968): "... there was never a more sterile controversy than that upon the question whether a judge makes law. Of course he does. How can he help it?" The reality is that judges are continually applying the existing rules to new fact situations and thus creating new laws. THE POSITION OF THE HOUSE OF LORDS
In the mid-nineteenth century the House of Lords developed the practice that it would be bound by its own decisions. This was reaffirmed in London Tramways Co v London County Council  AC 375. The House of Lords felt that decisions of the highest appeal court should be final in the public interest so that there would be certainty in the law and an end to litigation. However, this practice was criticised from the 1930s. Some of the Law Lords said that the rule did not produce the desired certainty in the law and it had become too rigid (eg, Lord Wright, Lord Denning and Lord Reid). Nevertheless, the practice was not changed until 1966 by Lord Gardiner LC. The practice statement was accompanied by a press release, which emphasised the importance of and the reasons for the change in practice: � It would enable the House of Lords to adapt English law to meet changing social conditions. � It would enable the House to pay more attention to decisions of superior courts in the Commonwealth. � The change would...
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