Do Judges Make or Find the Law - Law Teacher.
The tensions between legislation and common law have a long history. In truth, often unacknowledged, they reflect in part a struggle between the desire of politicians to acquire an effective monopoly over legal policy and its application, as well as other aspects of public policy, and the judiciary to retain a significant portion of their historic role of developing large areas of the law.
This essay seeks to establish several areas in which judges do make law. Presently a judge’s role is not to make law but to uphold the laws which are made by the parliament. Each law which is made by the parliament must be clearly defined and applied by the judges in accordance with the cases. While making decisions about a case a judge must.
The question this essay aims to consider is whether this is really the case or whether the decision making judge is merely finding the precedent of law that fits the case he or she is presiding over. The question will be answered by way of consideration of case law and precedents and subsequently how the judges may or may not be utilising them when reaching a decision.
Essay Legal Realist Of Law Is Made By Legal Legislatures. 1) The first Objection based on legal realist of law is that law is made by legal legislatures and constitutions which works in one state might not work in another and that it could go both ways and it is left in the hands of the judges to make a decision which could affect both parties.
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great value on deciding cases according to consistent principled rules, so that similar facts will yield similar and predictable outcomes, and observance of.
FreeBookSummary.com. The tradition view of the law making process is that Parliament makes law through Acts of Parliament and delegated legislation and judges merely apply it in court to the cases presented before them. According to the declaratory doctrine of common law, judges do not make law. There are, in Blackstone’s word, “judge is not delegated to pronounce new law, but maintain.
One of the most illustrious normative claims in the law and economics literature, originating with Posner and supported by models of evolutionary legal change, posits that a system of judge-made law offers efficiency advantages over statute-based systems. In recent years, however, scholarship has identified aspects of common law systems that undermine the optimism about judge-made efficiency.
The rules of precedent themselves are judge made, except where a statute has intervened. Occasionally, judges have to decide on a case where there is no previous legal decision or law for the judge to use. This leads to judges technically making law through original precedent. The doctrine of Precedent is the process whereby judges of a lower court are bound to follow a decision on a point.
All judge-made law is necessarily retrospective. Whenever a court makes a decision which settles a previously unsettled principle, or which reverses previous cases, the person who is the subject of the case in question is affected by the newly-enunciated law.
Judges are merely interpreting the laws made by parliament. The primary function of the court is not to make law but to adjudicate. The mandate only goes to the legislature of parliament as the people elect them. Done by: Johansson Word count 2959 References 978-9-81068746-5, (2011), Introduction to Commercial Law, SMa Institute of Higher.
Common Law Common law is judge-made law. It dates back to the justiciars in England who travelled the countryside, meeting with the townspeople to solve disputes. They helped the king. In each community a local group of twelve senior men would tell the justiciars which persons were accused of breaching the local customary law. Those men or jurors would most often have no.
The best of the law of England is, however, judge-made law. A decided case is not merely one which may be followed, but it is obligatory on the court to follow its ratio decidendi. This portion of the law has not been created by an Act of Parliament, but is the work of the courts and is recorded in the law reports instead of in the statute book.
The Role of the Judiciary A judge is a person who presides over a court of law whether it is a lower court or a higher court. There are many different types of judges, varying from the Justices of Peace who sit mainly in the Magistrates Court in ordinary clothes, to the robed Justices of the Supreme.
