Last Updated 27 Jul 2020

Do Judges Make Law

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University of London Common Law Reasoning and Institutions Essay Title: ‘Judicial precedent is best understood as a practice of the courts and not as a set of binding rules. As a practice it could be refined or changed by the courts as they wish. ’ Student Number: 090500532 Candidate Number:L8000 The declaratory theory of English common law is that the function of the judge is to declare what has always been the correct legal position at common law.

In carrying out this task judges should aim to treat like cases alike so as to bring certainty and consistency to the application of the law and for this purpose they should observe the doctrine of precedent based on the hierarchy of courts. This declaratory theory preserves the constitutional role of the judges and leaves the task of legislating to the Parliament. The doctrine of judicial precedent is based on the principle of stare decisis which means that like cases should be treated alike.

The general rule is that all courts are bound to follow decisions made by courts higher than themselves in the hierarchy and appellate courts are usually bound by their own previous decisions. This is known as the principle of stare rationibus decidendis; usually referred to as stare decisis. It translates simply as ‘Let the decision stand’. Stare rationibus decidendis is the more accurate statement because, as we shall see, it is the reasoning (rationibus) that is the vital binding element in judicial precedent.

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However, nobody actually refers to it this way. What stare decisis means in practice is that when a court makes a decision in a case then any courts which are of equal or lower status that 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 decision. The practice of precedent was established in the mid-nineteenth century and reaffirmed in 1898 in London Street Tramways Co. ltd v London County Council.

The motive was that it was felt that decisions of the highest appeal court should be final in the public attention so that there would be certainty and consistency in the law and an end to litigation (the speech of the Earl of Halsbury LC). But it is seemed that always it is not happening this way. Judges while making decisions have choices. There can be distinguishing, overruling, reversing or disapproving. When judge finds that the material facts of the case he is deciding are sufficiently different for him to draw a similar decision between the present case and the previous precedent, he is not then bound by the previous case.

This distinguished the case from Balfour v Balfour. Also in Merritt v Merritt it was held that the agreement was not just a domestic arrangement but meant as a legally enforceable contract. Overruling may occur where the decision in an earlier case is wrongly decided. In Hedley Byrne & co Ltd v Heller & Partners Ltd the judges follow overruling, this is where a court in a later case states that the legal rule decided in an earlier case has been strongly decided. This would normally happen when a court higher in the hierarchy over-rules a decision made by a lower court in a previous case.

The doctrine of judicial precedent has fallen victim to many conflicting arguments as to whether it is being followed as a strict set of rules or a mere practice of the judiciary to bring consistency and certainty. Therefore a concise discussion of these arguments is necessary before we come to any conclusion regarding this topic. We need to find out, is there anything which makes the precedent strict? In UK the Parliament is the ultimate body that makes law. However, the judiciary also makes law by way of judicial pronouncements.

Where the parliament is consisted by those people who are elected by the voters usually the citizens of UK, but judiciary is not elected. Under the English legal system, parliament is the highest authority and sovereign, so, the statutory law is the law which is as strict as no one can change or modify it without parliament itself. On the other hand law made by judges which is called case law is flexible. If we look upon the history of common law tradition we can see the development of case law over time to time with the changing society and commercial needs.

Determining the boundaries of judicial law making is partly a doctrinal and partly a constitutional question. A useful place to start is Lord Scarman’s speech in McLaughlin Appellant V O’Brian. The appeal in this case raised the very question of the relationship between the legislature and the judiciary. Lord Scarman argued that the judge had jurisdiction over a common law that ‘knows no gap’ and no ‘casus omissus’. If this is the case, the task of the common law judge is to adapt the principles of the law to allow a decision to be made on the facts in hand.

This may involve the creation of new law. Whatever the case, judicial reasoning begins from ‘a baseline of existing principle’. The judge works towards a solution that can be seen as an extension of principle by process of analogy. For Lord Scarman this is the distinguishing feature of the common law: the judicial creation of new law, as the justice of the case demands. This process may involve policy consideration, but, the judges can legitimately involve themselves in this activity, provided that the primary outcome is the formation of new legal principles.

In those cases where the formation of principle involves too great an intrusion into the field of policy, the judge must defer to parliament. We can see the position of the organs and understand that judicial precedent is not a rule from the parliament to follow. It is a practice of judiciary to look upon. The term ‘judicial precedent’ has at least two meanings. First, it may mean the process whereby judges follow previously decided cases. Secondly, it may refer to the decided case itself- a ‘precedent’ which may be relied on in the future.

Before 1966, the House of Lords regarded itself as being completely bound by its own past decision unless it had been made per-incurrium. But after 1966 practice statement issued by Lord Gardiner the House of Lords was no longer bound by precedent. In order to bring development in common law with the changing circumstances of the society the House of Lords did not follow the precedent too rigidly. However both the ECJ and the House of Lords can over-rule their own decisions made in previous cases. Such as the decision of Davis v Johnson has been overruled by Pepper V Hart.

In their practice judges also follow the method of reversing. If the decision of the lower court is appealed to a higher one, the higher court may change it if feels that the lower court has been wrongly interpreted law. Reversing occurs when a court higher up in the hierarchy overturns the decision of a lower court on the basis of an appeal in the same case. In Re Pinochet the House of Lords reversed its own previous decision for the first time. Judges also disapprove or abolish a principle when a decision is reached by carelessness or mistake.

In Kleinwort Benson V Lincoln City Council, the House of Lords abolished a two hundred years old common law principle that money paid by mistake of law is not refundable. The House felt that this common law principle was in direct contradiction of the principles of restitution and unjust enrichment. In Vestey V Commissioners of Inland Revenue the House of Lords overruled its own previous decision in Congreve v Commissioners of Inland Revenue. In R v G the House of Lords overruled the decision of R v Caldwell. As lower court, the Court of appeal in many cases did not follow the House of Lords decision.

In R v Faqir Muhammad the Court of Appeal decided to follow Privy Council case Jersey v Holley and not the decision of House of Lords in R v Smith (Morgan). Even in R v R, the House of Lords held that rape can be occurred within married couple, overturning a legal principle that had stood for centuries. The House stated that it was merely a common law myth which is not compatible with the existing social values. Some judge’s feel that they must adhere to precedent at all cost because this promotes certainty. Others take a more creative standpoint.

It is submitted that they do both things: they adhere to precedent and also use or adapt precedent to justify their decisions. Therefore despite our strict views of stare decisis there exists the role of choice in our judicial process. Judges after all try to achieve fairness. If common law is not modified by the judges then according to Lord Goff in Kleinwort Ltd v Lincoln Council: ‘the common law would be the same now as it was in the reign of Henry II ... [but it] is a system of law reacting to new events and new ideas... ’. The doctrine of binding precedent achieves certainty and flexibility at the same time

Bibliography: Mohammed B. Hemraj. Judges as law makers. Legal Journals Index. 2011 . Flanagan Brian and Ahern Judicial decision-making and transnational law: a survey of common law Supreme Court judges. International & Comparative Law Quarterly 2011 Kirby Michael . Judicial dissent - common law and civil law traditions. law Quarterly Review 2007 Malleson K, the English Legal System, 3rd Edition, Oxford University Press. Gearey Adam, Morrison Wayne and jago Robert ‘’ the politics of common law ‘’ 2009 Holland, James and Webb, Julian. Learning Legal Rules. 7th edition. Oxford University Press. 2010

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