Judicial Creativity - Law Essay Example
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
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