Judicial Law-Making Essay

The independence of the judiciary was ensured by the rush of settle man indicantt 1700, which transferred the function to sack decide from the crown to the parliament. Consequently, settle should theoretically make their decisions ground purely on the consistent deductions of actor, uninfluenced by political or c arr countations. The eighteenth century reasoned commentator, William Blackst maven, introduced the declarative possibility of truth, stating that adjudicate do non make rectitude, simply when merely, by the rules of precedence, disc everywhere and declare the right that has always been the judge being blaspheme to determine, non according to his private sentiments ot according to his own private judgement, precisely according to the known righteousness of natures and customs of the land non delegated to pronounce a sassy law, only when to maintain an expound the old mavin.Blackst maven does not accept that creator does not even offer a filling b etween two or to a greater extent definitions of the law where a fearful decision is make, he states, the new one that reverses or overrules it is not a new law, nor a statement that the old decision was bad law, but a declaration that the previous decision was not law, in other words that it was the wrong answer.His view presupposes that in that location is always one right answer, to be deduced from the objective study of precedence. Today, however, this position is considered somewhat unrealistic. If the function of precedent is the precise science Blackstone suggested, a large majority of object lessons in the higher courts would never come to court at all. The lawyers concern could simply reckon up the relevant human face law and predict what the decision would be, then advise whichever of the clients would be bound to nod off not to bother bringing or fighting the elusion.In a civil case, or any appeal case, no good lawyer would advise a client to bring or defend the case that they had no chance of winning. Therefore, where much(prenominal) a case is contested, it brush aside be assumed that, unless one of the lawyers has made a mistake, it could go either way, and clam up be in accordance with the law. In practice, thus, judges decisions may not be as neutral as Blackstones asserting(prenominal) theory suggests they pee-pee to make choices which are by no means spelled erupt by precedent.Yet, rather than openly stating that they are choosing between two or more equally relevant precedents, the courts find ways to avoid clownish ones, which give them the impression that the precedents they do choose to follow are the only ones they could possibly apply. Ronald Dworkin reasons that judges have no real discretion in making case law. He sees law as a broadloom web of principles, which supply a right answer and only one to every possible problem.Dworkin reasons that although stated legal rules may run forth (in the sense of not being di rectly applicable to a new case) legal principles never do, and therefore judges never need to map their own discretion. In his book, laws empire 1986, professor Dworkin claims that judges first look at previous cases, and from those deduce which principles could be said to apply to the case for them. They then consult their own sense of justice as to which apply, and as well as consider what the communities view of justice dictates.Where the judges view and that of the community coincide, there is no problem, but if they conflict, the judges then ask themselves whether or not it would be fair to impose their own sense of justice over that of the community. Dworkin calls this the interpretive woo and, although it may appear to involve a series of choices, he considers that the legal principles underlying the decisions mean that in the end, only one result could possibly surface from any one case.Dworkins approach has been heavily criticised as being unrealistic opponents believe that judges do not consider principles of justice but take a some(prenominal) more pragmatic approach, looking at the facts of the case, not the principles. Critical legal theorists, like as David Kairys (1998) take a quite different view. They argue that judges have considerable freedom within the doctrine of precedent. Kairys suggests that there is no such thing as legal argumentation in the sense of a logical, neutral method of determining rules and results from what has gone sooner.He states that judicial decisions are real based on a interlinking mixture of social, political, institutional, experiential, and personal factors, and are simply legitimated, or justified, by case to previous cases. The law provides a wide and conflicting variety of such justifications from which courts pick and choose. The process is not necessarily as distrustful as it sounds. Kairys points kayoed that he is not saying that judges actually make the decision and then consider which preceden ts they can pick to exempt it rather their own eliefs and prejudices naturally lead them to give more system of weights to precedents which support both views.Nevertheless, for critical legal theorists, all such decisions can be seen as reflecting social and political judgements, rather than objective, purely logical deductions. Critical theory argues that the neutral appearance of so called legal reasoning disguises the true nature of legal decisions which, by the choices made, uphold existing power relations within society, tending to favour, for example, employers over employees, property owners over those with out, men over women, and rich, developed countries over miserable, undeveloped ones.Griffith (1997) argues that judges make their decisions based on what they see as the public post, but that their view of this participation is coloured by their background and their position in society. He points out that judges view of public interest assumes that the interests of al l the members of society are roughly the same, ignoring the fact that within society, different groups, employers and employees, men and women, rich and poor may have interests which are diametrically opposite. What appears to be acting in public interest will usually mean in the interest of one group over another, and therefore cannot be seen as neutral.Waldron, in his book The Law (1989), agrees that judges do make law, and that they are influenced in those instances of law-making by political and ideological considerations, but argues that this is not necessarily a bad thing. He contends that while it would be wrong for judges to be biased towards one side in a case, or to make decisions based on political factors in the hope of promotion, it is unrealistic to behave a judge to be a political neuter gelded of all values and principled commitments.Although judges have traditionally seen themselves as declaring or finding rather than creating law, and frequently state that maki ng law is the prerogative of the parliament, there are several areas in which they clearly do make law. In the first place, historically, a great deal of incline law is and always has been case law, made by judicial decisions. get under ones skin and civil wrong law are still largely judge made, and many of the most important developments for example, the development of negligence as a tort have had profound effects.Even though statutes have later been passed in these subjects, and occasionally parliament has attempted to embody whole areas of common law in statutory form, these still embody the original principles created by the judges. Secondly, the performance of law, whether case law or statute, to a particular case is not usually an automatic matter. Terminology may be vague or ambiguous, new developments and social life have to be accommodated, and the procedure requires interpretation as well as application.As we have suggested, judicial precedent does not always make a particular decision unmistakable and obligatory there may be conflicting precedents, their implications may be unclear, and there are ways of getting round a precedent that may otherwise produce an undesirable decision. If it is accepted that Blackstones declaratory theory does not apply in practice, then clearly the judges do make law, rather than ex starking the law that is already there. The theories advanced by Kairys, Griffith, and Waldron, all accept that judges do have discretion, and therefore they do to some extent make law.Where precedents do not spell out what should be done in a case before them, judges nevertheless have to make a decision. They cannot simply say that the law is not clear and refer it back to parliament, even though in some cases they point out that the decision before them would be more appropriately fixed by those who have been elected to make decisions on changes in the law. This was the case in Airedale NHS Trust v Bland (1993), where the ingles ide of Lords considered the fate of Tony Bland, the football supporter left in a coma, by and by the Hillsborough stadium disaster.The court had to decide whether it was lawful to stop supplying the drugs and sentimental feeding that were keeping Bland alive, even though it was known that doing so would mean his death soon afterwards. Several law lords made it plain that they felt that cases raising wholly new moral and social issues should be decided by the Parliament, the judges role being to apply the principles which society, through with(predicate) the democratic process, adopts, not to impose their standards on society. Nevertheless, the courts had no option but to make the decision one way or another, and they decided that the process was lawful in the circumstances, because it was in the patients best interests. Thirdly, our judges have been left to define their own role, and the role of the courts generally in the political system, more or less as they please. They have , for example, given themselves the power to review decisions of any public body, even when parliament has said those decisions are not to be reviewed.In addition, despite their frequent pronouncements that it is not for them to arbitrate in parliaments law making role, the judges have made it plain that they will not, unless forced by very perspicuous wording, interpret statutes as encroaching on common law rights or judge made law. They also control the operation of case law without reference to parliament an obvious example is that the 1966 practice statement announcing that the HOL would no longer be bound by its own decisions, which made case law more flexible and thereby gave the judges more power, was made on the courts own authority, without needing permission from parliament.The HOL has explained its approach to judicial law-making (which is likely to be the same for the Supreme Court) in the case of C (a minor) v DPP 1995, which raise the issue of childrens liability f or crime. The common law refutal of doli incapax provided that a D aged between 10 and 14 could be credible for a crime only if the prosecution could prove that the child knew that what he or she did was seriously wrong.On appeal from the magistrates court, the divisional court held that the defence was outdated and should no longer exist in law. An appeal was brought before the HOL arguing that the divisional court was bound by precedent and not able to change the law in this way. the HOL agreed and went on to consider whether it should change the law itself (as the 1966 practice statement clearly allowed it to do), but decided that this was not an appropriate case for judicial law making.