Can and should judges make law

William Blackstone-Says that judges do not make law but merely by the rules of precedent, discover and declare the law that has always been.
1. Declaration that previous decision was 'not law' in other words was the wrong answer
2. He says that where there was a bad law a correction is made to over rule the old one therefore no new rule has been made.
3. Blackstone does not accept that precedent ever offers a choice between two or more interpretations of the law
Judges do make law: Do use precedent to create new law and extend old principles
1. Law of Contract: Nearly all the main rules which govern the formation of contracts come from decided cases, therefore made by Judges
2. Tort of negligence:This is another major area which has been developed through judicial decisions.
  1. Donohue v Stephenson 1032 - HoL recognised a manufacturer owed a duty of care. Created a 'neighbour test'
    1. Lord Atkin said in his judgement: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour."
  2. Ogwo v Taylor 1987 - Man started fire in his roof when trying to burn off paint with a blowtorch owed a duty of care to a fireman who was injured trying to put the fire out
3. Criminal cases
  1. Stare Decisis - (D) Stand by what has been decided - (C) Follow the law in previous cases for ceratinty and fairness
  2. Ratio Decidendi - (D) Reason for deciding case - (C) The part of the judgment which creates the law
  3. Obiter Dicta - (D) Other things said - (C) The other parts of a judgment which do not create law
  4. Binding Precedent - (D) A previous decision which has to be followed - (C) Decisions of higher courts bind lower courts
  5. Persuasive precedent - (D) A previous decision that does not have to be followed - (C) The court may be 'persuaded' that the same legal decision should be made
  6. Original precedent - (D) A decision which a case where there is no previous legal decision or law for the judge to use - (C) This leads to judges 'making' law
  7. Distinguishing - (D) A method of avoiding a previous decision because the facts in the present case are different - (C) e.g Balfour v Balfour not followed in Merritt v Merritt
  8. Overruling - (D) A decision which states that a legal rule in an earlier case was wrong - (C) e.g in Pepper v Hart the HoL overruled Davis v Johnson on the use of hansard
  9. Reversing - (D) Where a higher court in the same case overturns the decision of the lower cours - (C) This can only happen if there is an appeal in the case
  10. Judicial decisions have also effectively made new crimes. R v R 1991 - rape within marriage is a crime.
    1. However have been cases in HoL refused to change the law
      1. C v DPP 1995 - When it refused to abolish the presumption that children between 10-14 were incapable of having the neccessary intension to commit a crime.
Should Judges make law?
1. SHOULD
  1. Yes. Where cases involves a legal point which has never been decided before. There is no law for them to follow. Parties would no want a refusal of a case and so a decision has to be made. Therefore Judges should make Law
  2. Judges overrule old cases and in doing so create new law.
    1. It is important for the law to be updated in this way, as law needs to be based on today's society and values.
      1. Law decided a hundred years ago may no longer be suitable. If judges did not overrule cases the law would be outdated

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Can and should judges make law

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	Created by robynsmillie about 11 years ago