Lawful9808

ESSAY TILE: 1) “Judge made-law”

STUDENT NUMBER: 111173370

CANDIDATE NUMBER: 151403

For long it has been the received opinion that judges filled in the gaps left by rules by using their discretion. Positivistic jurisprudence from Austin to Hart placed strong emphasis on the part played by judges in the exercise of their discretion. “In these cases it is clear,” Hart said,” that the rule-making authority must exercise discretion, and there is no possibility of treating the question raised by the various cases as if there were one uniquely correct answer to be found, as distinct from an answer which is a reasonable compromise between many conflicting interests”. A competing view was espoused by the realists who placed absolute emphasis on the discretion of judges and relegated the “rules” to an obscure position. Earlier, little attention was paid to the analysis of discretion. However, a determined effort has made lately by Ronald Dworkin, who has cast serious doubts on the orthodox opinion and has emerged as the principal opponent of Hart. Dworkin’s views have posed a sustained challenge to the positivist account and have received critical acclaim by leading jurists of the world.

In 1345, an English lawyer argued to the court,” I think you will do as others have done in the same case, or else we do not know what the law is. “It is the will of justices,” said Judge Hillary. Chief Justice Stonore broke in: “No law is that which is right”. This controversy between the two judges is still ranging after six and a half centuries. In modern terms, the problem can be phrased in order to know exactly what part do judges play I the development of law,” do judges make or declare law”.

Argument to this concentrates on the behalf that in “hard cases” judges can and do create new law. It seems that there are clear indications that judges do indeed create new law where, for example, existing laws have become outdated and inappropriate. This essentially stems from the views of the famous common law theorist, Hart, a legal positivist who sees the fusion of primary and secondary rules as being the determinate of what later becomes known as a legal system. But another thinker, Dworkin, is vehemently against the law making power of the judges. The law is a seamless web in which there will always be a right answer. It is said that judges make new law or so-called creative especially in two fields which is in the development of the common law and in the interpretation or statutes. Nevertheless, their freedom is restricted by the rules of precedent and the supremacy of parliament and by the rules of statutory interpretation.

The official line is of course that judges, however in a real sense they do in a number of circumstances. Firstly, Parliament cannot foresee every eventuality, or explain every term in its statute exhaustively, so the need will arise for judges to interpret the statute so as to apply it to the case before the courts, many issues are treated as mere interpretation. Sometimes there is simply no express law on a matter which arises. For example, in Factortame case, there is no statute to be dealt with when they conflicted with European Union law (EU). As a result of decisions in EU courts, the House of Lords (HOL) hastily developed new doctrine to allow the statute in question to be “misapplied” without completely abandoning the principle of parliamentary supremacy. This decision was heavily influenced by political expediency; the alternative would have involved fundamental changes in the United Kingdom (UK) constitution or a break with the European Court of Justice (ECJ).

There are areas where there is no statute law. In these instances judges build on previous case laws in a way that they could be called law making. Since 1966, it has been possible for the HOL to reverse its own previous legal decision, the obvious case is, R v R concerning rape within marriage.

The debate against the “declaratory theory” holds that judges do not create or change the law, but they “declare” what the law has always been. Professor Atiyah’s commentary in declaratory theory in “Judges and Policy”. Firstly, judges can use it to evade responsibility by shifting criticism of his judgment onto “the law” as a higher principle, and that they are “bound by the law”. Second, because the Parliament is the proper place for legislation to be made, judges should make law only within narrow constraints, they should do so to do justice. This approach gives frustration to interpreting ratio of particular cases, which results in the misapplication of law in later cases. Thirdly, judicial lawmaking is tolerated only because it is not exercised openly, and if judges made law without retrospective effect this would effectively mean that they are engaging in “naked legislation”. Judicial creativity using declaratory theory means that lawmaking is done on the sly. Fourthly, many judges appear to believe that the only alternative to declaratory theory is to abandon the doctrine of precedent and the separation of powers. Finally, judges can hide behind declaratory theory to prevent the perception that they prefer one view of the law of another, and thereby retain public respect for the judicial impartiality.

There have been controversies over the principle that the judiciary simply apply the law and not make it, especially in the areas of criminal law because it contravenes Parliamentary Supremacy. So when the judiciary resurrected the offence of conspiracy to corrupt public morals in Shaw v DPP a case involving the publication of a women’s directory that included their contact details and services, then later in R v Knuller, the House of Lords affirmed the decision of the Shaw, there was uproar of judiciary overstepping their functions. The government consists of three separate organs or bodies; the legislature, the executive and the judiciary. The doctrine of separation of powers states that each body of government should have their own distinct functions in which they perform and that each should act as a check and balance, this was expressed in the French Declaration of the Rights of Man 1789,”any society in which the safeguarding of rights is not assured, and the separation of powers is not observed, has no constitution.”It is clear that the United Kingdom seeks a separation of powers, but government tends to overstep from time to time.

Senior judges like Lord Bingham are this country’s most influential and powerful individuals, far more so than most ministers, any media commentator and all “celebrities” yet most people would be hard-pressed to name a single member of what is now the Supreme Court. Their role expanded greatly in recent years due to the growing complexity of government, the extraordinary tangle of statute law which got out of control under Labour. Despite criticizing some, Theresa May says she is a great admirer of most of the judges in Britain. Home Secretary Theresa Many has accused judges of making the United Kingdom more dangerous by ignoring rules aimed at deporting more foreign criminals. Last year, members of parliament approved new guidance for judges making clear a criminal’s right to a family life had limits. But, Mrs. May said she now wanted to introduce a law to require most foreigners guilty of serious crimes to be deported. Some judges were choosing to “ignore parliament’s wishes,” she argued.

Last year’s guidance was designed to put an end to circumstances in which the right to a family life as set out in Article 8 of the European Convention on Human Rights was used to justify granting foreign criminals the right to remain in the United Kingdom, rather than being deported. The Labour also questioned whether the guidance would be sufficient to override the precedent set by earlier cases and said it would support primary legislation. The Home Secretary, in her newspaper article, blamed judges who had “got it into their heads that the ECHR Article 8 ‘right to family life’ could not be curbed”. Unfortunately, some judges evidently do not regard a debate in Parliament on new immigration rules, followed by the unanimous adoption of those rules, followed by the unanimous adoption of those rules implemented,” she said.

“Yet some judges seem to believe that they can ignore Parliament’s wishes if they can ignore Parliament’s wishes if they think that the procedures for parliamentary scrutiny have been ‘weak’. That appears actually to mean that they can ignore Parliament when they think it came to the wrong conclusion.” She accepted the need for the power of government ministers to be ‘reviewed and restrained’ by the judiciary. However, she stressed that United Kingdom laws are “made by the elected representatives of the people in Parliament”, adding; “our democracy is subverted when judges decide to take on that role for themselves”.

Mrs. May also said that it is important to remember that this is about the independence of the judiciary and why it is so important. It is absolutely imperative that judges are not under the thumb of home secretaries, and it can be frustrating for home secretaries of course, but it is not good to see this kind of vocal attack on the judges. It was the job of the criminal courts to decide how best to protect the community from the offenders by imposing custodial sentences, and subsequent judgments on whether to deport a foreign criminal on their release from prison could be “very difficult, subtle decisions”, she adds.

In conclusion of all, judges do not make law but they interpret and apply existing law, if they are applying statute law there are also well recognized rules of interpretation and construction designed specifically to discern the intention of the legislature in enacting the statute in question. Likewise if they are applying common law there are well understood rules of precedent which determine how to recognize and apply a prior binding precedent. Then there are cases of ‘first impression’ where the facts are unique and there are no relevant statutes and relevant precedents and where a judge is free to determine the cases on general principles or for the need of a better word of ‘fairness’ between the parties but it is also true that the judges are merely applying existing law to new fact situation and thus creating new law.

These rare cases are the closest that judges come to making new law but if there is no pre-existing law, then who is going to do the work. The argument that judges should not make law is sometimes made when a decision is politically unpopular but then the legislature is able and often minded to legislate to reverse these decisions. The concept of separation of powers by Baron Montesquieu should be kept within the scope that each organ of the government should be able to perform their own functions, and also the fact that United Kingdom does not have a constitution.

BIBLIOGRAPHY:

1. R v Secretary of State for Transport ex parte Factortame Ltd, 1989.

2. European Union Law.

3. European Court of Justice.

4. R V R(1991)3 WLR 767

5. Marital Rape, Hiddenhurt.co.uk.2007.06.

6. Shaw v DPP (1962) ACC 200 HOL.

7. R v Knuller (1973) HOL AC 435.

8. French Declaration of the Rights of Man 1789(4 October 1958).

9. www.bbc.co.uk/news/uk.

www.telegraph.co.uk.

Bibliography: 1. R v Secretary of State for Transport ex parte Factortame Ltd, 1989. 2. European Union Law. 3. European Court of Justice. 4. R V R(1991)3 WLR 767 5. Marital Rape, Hiddenhurt.co.uk.2007.06. 6. Shaw v DPP (1962) ACC 200 HOL. 7. R v Knuller (1973) HOL AC 435. 8. French Declaration of the Rights of Man 1789(4 October 1958). 9. www.bbc.co.uk/news/uk. www.telegraph.co.uk.