Legal System and Methods (LSM) Question on Judicial Law making PDF

Preview

Summary

Legal System and Methods (LSM) Essay Question on the Doctrine of judicial Law making...

Description

LSM QUESTION (Judicial Law Making)

Q. “There can be no doubt that judges do, and that judges should, make law.” Discuss this statement describing the extent to which judges actually make law and explaining the limits on judicial law making.

Ans. The statement in the aforementioned question is asserting that judges do make law and that they should not be stopped from doing so. The question then asks one to discuss the limits there are on this doctrine of judicial law-making. One may feel no qualms in asserting that judges do make law as was seen in R v R, and that such law-making is legitimate. Furthermore, there is no doubt that judicial lawmaking is a fundamental feature of English Legal System without which UK’s common law system would be incomplete. In this answer one would start off by explaining what judicial law-making is its relevant case laws, which may include R v R, R v Clegg and DPP v Jones etc. One would then highlight the school of thoughts on judicial law-making, namely Declaratory School of Thought and the Proponents of judicial law-making. After discussing the arguments presented by both one would shine light on how this lawmaking is legitimate while drawing nexus with the doctrine of binding precedent. One would then analyze in the light of the aforementioned content which school of thought prevails and the importance of judicial law making in the common law system in UK. To conclude, one may reassert the thesis that judicial law making is one of the fundamental features of English legal system and that judges do and should be allowed to make law.

There is no doubt that judicial law-making is practiced in the English legal System, as can be seen by R v R, where an Act of Parliament failed to consider the chances of marital rape, so the courts stepped in and according to the common sense and knowledge of the judges, redefined the legal definition of rape. Where an Act of Parliament fails to cater a specific issue at hand, judges may step in to avoid any miscarriages of justice. Judicial law-making is highly criticized as it is seen as a clear and prominent breach of separation of powers, according to which each organ of the state has their set domains and cannot trespass the domain of other. Law-making is technically the domain of the parliament, therefore judiciary is ought not to trespass it. However, one fails to consider the fact that the legal system followed in UK is common law system which literally means “judge-made” law. How can one ask for judges not to make law when the it is the sole concept of the legal system which is being followed for several centuries now. One would now highlight the two school of thoughts on judicial law making starting with the Declaratory school of thought, according to the declaratories, judges should not be allowed to make the law. The main arguments brought up by this school of thought are that judges are human beings so they would have the element of arbitrariness in them, how would this element be catered when they are making the law. Law is supposed to be neutral and unbiased, how can one be sure that the judge is impartial while

he makes the law. These arguments are answered by the Proponents of judicial law making who give two reasons why judges should be allowed to make the law. The first reason being public reasoning. When a judges gives a decision, he cannot simply give it on the basis of what he feels, he has to consider the facts, the evidence and the law he has at hand before giving any such decision, therefore along with every decision comes a reasoning which is available for the general public, hence called public reasoning, so that anyone and everyone can have access to what the judge was thinking while giving the decision. This is one of the factors which can ensure that the judge is impartial and unbiased. The second reasoning given by the proponents is judicial restraint. As the name suggests, judicial restraint is the restriction the judges have while deciding a matter. This right here, is the doctrine of judicial precedent. Judicial restraint promotes certainty, rigidity and stability in law as the judge cannot decide a matter from his own will. To understand this better, one may briefly explain the doctrine of binding precedent. Doctrine of Binding precedent was established in London Tramways v London City Council, where it was held that a lower court is bound by the decisions of a higher court and the higher court is in turn bound by its own previous decisions. This means that where there is a new case with facts similar to an old one, the decision of the old case would be followed in the new case. This clearly lessens or eliminates the question of arbitrariness to a large extent. This doctrine has established a system of rigidity although there is a ‘pinch; of flexibility to it which is only used where it is necessary. This ‘pinch’ of flexibility is the practice statement, practice statement is a tool which is solely the domain of the House of Lords which is used by the House of Lords, now Supreme Court to overrule or depart from their previous decision where it is appropriate to do so. This primarily happens when either the case decided before was not decided properly or where there has been a significant social change in the society and the concepts of the society. Practice Statement was seen being used in R v Shivpuri where the House of Lords departed from their decision in Anderton v Ryan, it was further used in R v Howe, where the House of Lords departed from their decision in DPP v Lynch. However, as established earlier, practice statement is solely the domain of the House of Lords, no court except for it can use it. This was seen in Schorschmeier and then in Davies v Johnson, where the Court of Appeal was denied the authorization to use practice statement despite their grounds being legitimate. Schorschmeier then went to the House of Lords as Miliangoes v G. Frank where practice statement was used to overrule the decision in Havana Railways and Lord Denning’s Lapse Rule was introduced according to which, “When a reasoning of a law seizes to exist, the law should seize to exist too”. Despite adding flexibility to the rigid doctrine of precedent, practice statement never undermined the sanctity of the doctrine of binding precedent. Having explained what precedent’s doctrine is, one may come back to the debate of judicial restraint. Judicial restraint hence blocks any chance of partiality or arbitrariness of the judge since the judge is bound to follow the decision of the previous case with similar facts.

To analyze, doctrine of judicial law-making is long practiced and followed in English legal system with the judicial decisions being a major chunk of the UK’s uncodified constitution. It is highly criticized for being in conflict with separation of powers which has been time and time again tried to be reinstated for a better functioning of the nation, one of the most recent attempts of which include CRA 2005, which

altered the composition of the office of the Lord chancellor giving clarity to the workings of each organ. However been said that, it is eminent for one to state again that judge-made law is a fundamental feature of the common law system in UK. Moreover, limits like public reasoning and judicial restraint prevent any chances of judicial activism or judicial martial law which has been described as chemotherapy. There is no doubt that judicial law making should take place, but it should have certain boundaries which are there due to public reasoning and the doctrine of binding precedent. Before wrapping it up, it is essential for one to debate on the legitimacy of such law-making. One may highlight that the primary issue of the judiciary is that it lacks public mandate since it is unelected. Therefore in order to be legitimate, this democratic deficit organ needs public confidence which can be ensured or amplified by judicial law-making. This was seen in R v R, where the judges decided to redefine the definition of rape and by doing so took law-making into their hands. If they had left the matter as it was or waited for the parliament to take action, then miscarriage of justice would have taken place as the innocent would have suffered. Also because, “Justice delayed is justice denied”. This act of the judges to take quick and efficient action of making the law which would otherwise would have taken months, enhanced the public confidence in this democratic deficit organ of the state. Furthermore, judicial law making was seen in DPP v Jones where the judges interpret the law according to the circumstances or may make law in the name of ‘rewriting the law’.

To conclude, there is no doubt that the role of the judges is to declare or interpret the law, however, in some exceptional circumstances, judges do make law as was seen in R v R and in some circumstances judges interpret the law according to the circumstances as was seen in DPP v Jones. Judicial law making although criticized has been seen as an asset to the English Common law system. This law-making is not only done, but is also legitimate as it enhances the public confidence in this democratic deficit organ of the state and hence giving merit or legitimacy to this law-making. Thus judges do and should make law while remaining under the limitations of public reasoning and judicial restraint....