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08/12/20, Wednesday Legal System and Method (QLC P) Zain MalikThe Doctrine of Judicial PrecedentQ# “Do judges make or declare law”. ExplainAns. Constitutionally it is the responsibility of parliament to enact law and judges interprets and applies the law in the name of state. To support this stateme...

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08/12/20, Wednesday Malik

Legal System and Method (QLC P.1)

Zain

The Doctrine of Judicial Precedent Q# “Do judges make or declare law”. Explain Ans. Constitutionally it is the responsibility of parliament to enact law and judges interprets and applies the law in the name of state. To support this statement one should overview the idea illustrates by William Blackstone known as ‘declaratory theory’. The principle of declaratory theory explains no new law is made by the judge. Courts of justice do not make law, their duty is to ‘ascertain’ and ‘declare’ what the law is. Judges only find the existing law in the individual case. Through their interpretation they give a new shape to existing law. Referred with case study of “Midland Silicone Vs Scruton Ltd.” (1962), held that ‘the first duty of the judges is to administer justice according to the law which is established by the Act of Parliament’-Lord Simmonds. It is agreed that the upmost duty of judges is to ‘declare what the law is’ but what if there is no law made by the parliament on a certain case, do parliament has enough time to tackle such novel situation ? The answer is ‘no’, because parliament has no time due to a heavy legislative responsibility. In such novel situations and after scholarly discussion, it has been proven that if there is no statutory Judges do make law. A famously known essay_ ‘The Judge as a Law Maker’ written by Lord Reid indicates in his essay that, we must accept this fact that for better or worst judges do make law and implement the question that we must focus on how they perform it and how should they perform it. A great deal of controversy has addressed on this question as to how far judges can legitimately make law although a great number such as Lord Bentham have referred to it as a “childish fiction” thus judges cannot make law. Many other scholars more so those that are followers of the realist school of thought have placed absolute emphasis on the discretion of judges and relegated the "rules" to an unclear position. Most importantly this is because judges are democratically elected but are appointed body in a state. A clear example to support this idea is referred by the case study of “R (on the application of Nicolson and others) vs Ministry of Justice”. In this case, the applicants were suffering through a deadly disease which made them paralyzed (i.e.; they were unable to do anything by their own will) and it was confirmed by the doctors they have six months or less. So they wanted to die by assisting someone as stated above neither was capable to end their own life of time of their choosing. They argued against the Supreme Court (formerly House of Lords) that according to section 2, ‘voluntary euthanasia’ which means assisted suicide, that was illegal in UK, the UK government breaches Article 8 (right to private life). Hence, neither Supreme court nor Court of Appeal change the decision and declares that they are bounded to follow the law already made by the Parliament. Judges do not have enough power to put-down or assign with the Primary Legislative.

Occasionally, judges are called upon to give a ruling or make a decision when faced with a novel situation. An example of this semblance is the case of “Gillick vs West Norfolk”, where Lord Scarman held that ‘it is clearly open to House of Lord to formulate the rule’. Judges further make law through statutory interpretation. The trend has always been that the legislature makes the law while the judges interpret it. Legislation may sometimes be unclear. When this occurs, a court will need to decide between different interpretations of legislation. The common law is judge made law. As said by the Lord Sumption, the HRA gives judges power to make new law in politically controversial areas and this is essentially undemocratic. He further argues that the law made in Europe by unelected judges is changing the law of UK. Lord Sumption express his idea in 2019 Reith lecture, the courts have developed. Judges can be said to be conveying novel precedent thereby using his own decision regarding when he thinks rules need to be applied, changed, improved, or abolished. In A.G v Butterwort, Lord Denning states that, it may be in the books, but if this be so all I can say is that the sooner we make it the better’. Moreover, the Parliament which is in charge of law making cannot amend each and every law simply because it is a very long process. This happened in case of “Airedale NHS vs Bland”. The issue was whether it was lawful to stop supplying drugs and artificial feeding to Mr. Bland, even though it was known that doing so would mean immediate death for him, several members of the House of Lords made it clear that they felt that the case raises ‘new moral and social issues’. According to William burnet Harvey, “a judge in laying down a rule to meet these situations is certainly making a new contribution to our law but only within limits usually well defined”. It is clear from the above statements that, not only constitutional interpretation, but also statutes have to be interpreted with the changing times and it is here that the creative role of the judge appears, thus the judge clearly contributes to the process of legal development. As per Lord Dyson stated ‘that if judges have not exercised their duty rightly, the Parliament would surely interfere with judges made law which means that the judges had used their powers wisely’....