Do judges make law?

Topics: Common law, Stare decisis, Judge Pages: 7 (2343 words) Published: March 7, 2014


University of London
Common Law Reasoning Institutions
Essay Title: “There can be no real argument about it: judges make law. The declaratory theory is more or less nonsense.”

Student Number: 120448995

Candidate Number: 150573

Historically there are lots of arguments by the philosophers and the critics that judges make law or not. Actually judges are meant only to interpret the law. This can be seen that somehow they are making law but the question arises whether this is lawful or not. Declaratory theory is ignored by various ways. Judges make law by stating that the fact is significantly different from the cited precedent. The English judiciary continues to maintain its institutional commitment to the declaratory theory of law, a theory that can be traced back to Blackstone and beyond. In short, what appear to be changes made to the law, by judicial decision, are to be regarded, rather, as declaring what the law is, and always was. In jurisprudential terms, of the adequacy of the theory but the recent decision of the Court of Appeal (Criminal Division) in R. v Cottrell1, R. v Fletcher2 brings into the practical difficulties that may attend adherence to that theory, as well as raising the issue of whether or not it is still appropriate to apply it to criminal appeals.3 The court was faced with fall-out from the decision of the House of Lords in R. v J 4. In that case, the House had decided that it was unlawful for the time limit on prosecutions for sexual intercourse with a girl under the age of 16, one of 12 months from the date of the alleged offence, to be circumvented by charging the intercourse in question as indecent assault, to which offence no such time limit applies.5 Mr. Bowen examines the decision of the House of Lords in Kleinwort Benson Ltd v Lincoln City Council6, with its reaffirmation by the majority of the declaratory theory of judicial decision making, en route to their decision that there had been a mistake of law where the law was thought to have been settled prior to the decision. The decision adopts the views of the Scottish rather than the English Law Commission in this respect, although it remains to be seen whose predictions will prove to have been correct.7

1R. v Cottrell EWCA Crim 1644
2R. v Fletcher [2007] EWCA Crim 2016; [2007] 1 W.L.R. 3262

3 www.westlaw.co.uk (Article: A challenge to the declaratory of law)

4R. v J [2004] UKHL 42; [2005] 1 A.C. 562

5 www.westlaw.co.uk (Article: A challenge to the declaratory of law)

6 Kleinwort Benson Ltd v Lincoln City Council [1998] 3 WLR 1095 7 www.westlaw.co.uk (Article: Fairy tales and the declaratory theory of judicial decisions)

So judicial precedent is an important & distinctive element of English law is that the reasoning and decisions found in preceding cases are not simply considered with respect or as a good guide, but can be binding on later courts. This is known as the principal of stare rationibus decidendis; usually referred to as stare decisis.8 In other way we can say that, bound to case law is the doctrine of binding precedent. This is followed by the judges of the court when they gave decision of any case. At that situation binding precedent is followed. What stare dicisis means in practice is that when a court makes a decision in a case then any courts which are of equal or lower status to that court must follow that previous decision if the case before them is similar to that earlier case. So, once one court has decided a matter other inferior courts are bound to follow that decisions.9 Judges from different court follow the precedent. Every court is binding upon its upper court & to the precedent. A hierarchy is followed in UK. Magistrates courts & Country Courts are bound by decisions of the High Court, the Court of Appeal and the Supreme Court. Magistrates’ and Country Courts are not bound by their own decisions, neither do they bind any court other court, although they...

Bibliography: 1. R. v Fletcher [2007] EWCA Crim 2016; [2007] 1 W.L.R. 3262
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