Can and should judges make law

Can and should judges make law

1. 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.

   • Declaration that previous decision was 'not law' in other words was the wrong answer
   • 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.
   • Blackstone does not accept that precedent ever offers a choice between two or more interpretations of the law

2. Judges do make law: Do use precedent to create new law and extend old principles

   • Law of Contract: Nearly all the main rules which govern the formation of contracts come from decided cases, therefore made by Judges
   • Tort of negligence:This is another major area which has been developed through judicial decisions.
     • Donohue v Stephenson 1032 - HoL recognised a manufacturer owed a duty of care. Created a 'neighbour test'
       • 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."
     • 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
   • Criminal cases
     • Stare Decisis - (D) Stand by what has been decided - (C) Follow the law in previous cases for ceratinty and fairness
     • Ratio Decidendi - (D) Reason for deciding case - (C) The part of the judgment which creates the law
     • Obiter Dicta - (D) Other things said - (C) The other parts of a judgment which do not create law
     • Binding Precedent - (D) A previous decision which has to be followed - (C) Decisions of higher courts bind lower courts
     • 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
     • 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
     • 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
     • 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
     • 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
     • Judicial decisions have also effectively made new crimes. R v R 1991 - rape within marriage is a crime.
       • However have been cases in HoL refused to change the law
         • 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.

3. Should Judges make law?

   • SHOULD
     • 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
     • Judges overrule old cases and in doing so create new law.
       • It is important for the law to be updated in this way, as law needs to be based on today's society and values.
         • Law decided a hundred years ago may no longer be suitable. If judges did not overrule cases the law would be outdated