Judges Make Law and Legal System of the United Kingdom - Essay Example

There can be no real argument about it: judges make law. The declaratory theory is more or less nonsense” No: Name: Date: “There can be no real argument about it: judges make law. The declaratory theory is more or less nonsense” Introduction In every democracy of the globe, good governance is heavily dependent on Parliament, Judiciary and the Executive. However, the legal system of most of the democracies revolves around the written or un-written constitution. The law makers pass the legislation. It is the responsibility of the competent judiciary to interpret the laws. In many cases, the judiciary voided the newly introduced laws since repugnant to the constitution and the fundamental rights of the people1. Discussion Legal system of the United Kingdom is based on statutes passed by the parliament, decision of the competent court of law where no statutory provisions are there, European Union Law and the European Convention on Human Rights. There are mixed opinions about the legal system of the United Kingdom with regard to the power of judges to make law and reject it. In this essay, we will analyze both views to find out the truth2. Let us see in which circumstances, judges do make law. Competent Courts make law at the time of interpretation of statutes and legal explanation of the Act. Since the chosen words are not precise, hence, each reader may draw his own explanation with reference to the legal explanation by the court of competent jurisdiction. The legal system of United Kingdom empowers the competent judiciary to make law while interpreting the rules which are inherent by nature. This can be seen in the broad spectrum of section 491 of the Human Rights Act. Accordingly, judges are duty bound to determine whether the act in question is compatible with the European Convention of Human Rights or not3. An in-depth study of the English legal system identifies its dependence on the judge’s made laws emanate from the decisions of the competent jurisdictions. Cited laws are considered as common laws or the case laws as the case may be. Each jurisdiction of England has the privilege to develop its own form of law. However, the matter of Scotland is the other way round. In the past, new laws and reforms were introduced through acts of parliament under the influence of the then government policies. In spite of that, case-law remains the important source of law. The decision of a judge can be binding at a later stage for other judges to follow while deciding the comparable cases. In accordance with the doctrine of "stare decisis", the judges rely on previous rulings of the competent judiciary4. In the British legal system, subordinate courts are not allowed to issue binding rulings. Therefore, the courts of first stance focus on factual findings rather than hearing legal arguments. Therefore, the superior judiciary is the only authority to issue binding rulings and the subordinate courts are bound to follow it5. In order to substantiate our viewpoint and for ease of reference, we may cite case examples here such as Lamb [1967]6, Thabo Meli v The Queen [1954]7 and Thornton [1992]8. In the mentioned cases, you will find the ratio decidendi. In a nutshell, these rules are to be treated as the doctrine of precedent. The judge, while deciding the case, will have to consider on the question whether the earlier decisions are binding, whether it is relevant to the case before him and distinguishable from the earlier case. In the English legal system, precedents are of utmost important as the source of common law. Precedents ensure certainty, consistency and logical development in the law. Sometimes, we found it more complex and rigid in implementation. If we look at many Continental European countries where written constitution is in force, we may find it illustrative in terms of explanation9. Take the example of murder in US under Federal Law. Contrary to that, the law of murder in England is confined to several cases. The classic definition of murder given by the Janet Loveless is "Murder is when a man of sound memory and the age of discretion, unlawfully killth within the county of the realm any reasonable creature”10. The legal system of England and Wales is based on common law; hence the decisions of the competent appellate courts become part of the law. From the above, it is very much clear that the judges do make law under the common law. In the era of 1892, the role of judges was confined to the existing laws. In this respect, we may refer to the case of Willis v. Baddeley11 wherein Lord Esher held, “There is no such thing that made law, judges do not make law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable."12 The modern view is that judges should be within the ambit of codified laws. As a matter of fact, judges apply the rules where they are needed. The judges in a number of cases do make law under the specific circumstances. Since parliament cannot forecast any eventuality that comes in or explains every provision in statutes in details. Therefore, the court is obliged to interpret the statutes to come to a just conclusion. Sometimes, judges do not find specific laws on the issues presented to them. To prove our stance, we may refer to the Factor tame cases wherein no law was found to deal with EU law. Keeping in mind the decisions of EU courts, the House of Lords developed afresh doctrine of law without hurting the principle of parliamentary supremacy13. Where there is no statute law, the judges heavily dependent on previous cases of law in vogue. We may find it in the case of Rylands v Fletcher14. Further, the House of Lords may have the legal authority to reverse its earlier decision. In this respect, we can refer to the case of R v R15 that is related to rape within the marriage. If we travel to the mid of the nineteenth century, the House of Lords was bound to comply with its own decisions. Its re-affirmation can be seen in the case of London Tramways Co v London County Council [1898]16. The House of Lords was of the view that the decision of the superior appellate court should be final in the larger interest of public and to an end of the vexatious litigation. This practice comes under harsh criticism since 1930s. Some of the Law makers considered it rigid since it did not produce the desired certainty17. Despite criticism on the above practice from concerned quarters, it lasted till 1966. However, the importance and the reasons of House of Lords should adapt indigenous law to meet the challenges of changing social requirement. The apex House should pay more attention to the decisions of superior courts of Commonwealth. The House in question should follow the practice of the preferred courts of other countries. In the United States of America, the Supreme Court is not bound by their earlier rulings18. The earlier decision of the court in the case of Herrington v British Railways Board [1972]19 was overruled by the House of Lords. In Addie, the House of Lords held that the liability of an occupier restricted to trespassing of a child who was injured at the hands of occupier. In Herrington, their Lordships took another view. In another example, Miliangos v George Frank (Textiles) Ltd [1976]20, the House of Lords overruled United Railways [1961]21. In the mentioned case of United Railways, it was held that damages should be in pound sterling. In Miliangos, the House of Lords took different view with regard to the damages in the respective currency, specified in the contract. Here, the judges felt it necessary to define a new rule to address it as afresh issue. Take the case examples of R v Howe [1987]22 and DPP for Northern Ireland v Lynch [1975]23, which were set aside by the House of Lords on the grounds that defence of duress is not extended to a person charged with murder. In the case of Lynch, the apex House held that duress can be accepted as a defence to a person who has participated in a murder as an abettor. In the case of Howe, his Lordship was in favour of duress to be taken as a complete defence to all crimes. The freedom of a judge is subject to the precedents of the competent court of law, the supremacy of the legislative body and the statutory interpretation. The judges while making laws should refer to the interpretation of statutes and the precedents in vogue. Judges give rulings where no precedent or guiding rule is available. Under the cited circumstances, we may say that judges can formulate existing precedent. By virtue of discretion, a judge may apply, change, improve or abolish the rule in force. According to Hart, where there are gaps in the legal system, judges should come forward to plug in the loopholes since the statutes and the common laws often found vague and unclear. Therefore, there is a need to create new laws to remove the ambiguous laws. The circumstance demands that the courts should strike a balance between the competitive interests24. A judge is bound to make a decision according to the known laws of the land and customs in practice. The man in question is against the discretion of a judge. Elected representatives should be responsible for making laws. Making laws by judges’ at their ends amounts to usurping the power of supreme legislative body. This trend should be discouraged25. It is true that the courts always do not rely on the precedents. They do consider the given principles of law while deciding the case. It means that the courts have to be within the limits of the constitution. It should not and cannot transgress the limits of the constitution until and unless they do not find any alternatives in the existing law26. We may cite the case of M.C. Mehta v. Union of India27 wherein the competent court of law held that with fast changing values of society, the law should not and cannot remain static. Under the given scenario, it is the judge to define new principles of law. From the cited decision, it is clear that the courts do make law, define new principles; interpret the statutes and strike down any provision of the constitution. Conclusion Review of the judge’s power to make law indicates that the law making power is not unbridled. The law making power rests with the supreme body of the country. The judges while making decision should take into account the existing laws, precedents and the statutory requirements. References Herrington v British Railways Board [1972] AC 877. James A. Holland and Julian S. Webb, Learning legal rules (Oxford university press, Oxford 2003). Janet Loveless, Complete criminal law: text, cases, and materials (Oxford University Press, Oxford 2012) 275. Jeremy Waldron, Law and disagreement (Clarendon Press, Oxford1999). Lamb [1967] 2 QB 981. London Tramways Co v London County Council [1898] AC 375. M. R. L. L. Kelly, Common Law Constitutionalism and the Oath of Governance: An Hieroglyphic of the Laws [2008] Miss. CL Rev 121, 172. M.C. Mehta (River Ganges Pollution) v. Union of India (1987) 4 SCC 463. Miliangos v George Frank (Textiles) Ltd [1976] AC 443. Northern Ireland v Lynch [1975] AC 653. Phil Harris, An introduction to law (7th, Cambridge University Press, Cambridge 2007) 203. R v Howe [1987] 2 WLR 568. Rylands v. Fletcher (1868)[1] LR 3 HL 330. Thabo Meli v The Queen [1954] 1 WLR 228. Thornton [1992] 1 All ER 339. United Railways [1961] AC 1007. Willis v Baddeley [1892] 2 QB 324. Read More