Essay: Do judges make law?

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  • Subject area(s): Law essays
  • Reading time: 4 minutes
  • Price: Free download
  • Published on: August 24, 2019
  • File format: Text
  • Number of pages: 2
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The subject of this essay is on the extent to which judges can correctly use their powers to shape the law. Emphasis would be on the instances where and why judges, rather than applying the law as enacted by Parliament, use discretionary powers to shape the law.

In the United Kingdom, the omnipotence of Parliament is one of the cardinal features of its unwritten constitution. However, the customary formulation of the doctrine is controversial, due to diversity in perception and narratives and most importantly, ways of resolving conflicts between parliamentary sovereignty and the rule of law. Undoubtedly, law making is the prerogative of Parliament and the traditional role of a judge is to declare the law. However, there are several areas in which judges do shape the law, thereby giving our laws new dimensions.

The doctrine of judicial precedent basically explains the way in which court decisions relate to each other. As a way of definition, a precedent is legal principle formulated by a court decision which is followed in a similar case.The fundamental principle of the doctrine holds that like cases should be treated alike. This mean that once a decision has been reached in a particular case, it stands as good law and should be relied upon in other similar cases as an accurate statement of law. However,it is persuasively argued that judicial precedents does not always make a particular decision obvious and obligatory. Hence, one of the main instances where a judge can shape the law is in the application of precedent. Where a precedent does not provide in clear terms what should be done in a case before the court, rather than referring such case to the Parliament, a judge can nonetheless make a decision which ultimately shapes the law.

Judge can correctly use their discretionary power to shape the law where rules conflicts, or exists but it is fuzzy at the edges and where such rule has a penumbra of uncertainty; in such un-provided for or unregulated cases. Thus, it is the judge’s role to use his own discretion regarding when he thinks rules need to be applied, changed, improved or abolished. According to Lord Denning, “we do not sit here to pull the language of Parliament and Ministers to pieces and make nonsense of it. We sit here to find out the intention of Parliament and Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.”

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