A judge is like an empire in court, they inheritmany roles in the act of law, and have the ability to sentence, deliver judgments in an impartial manner andto apply the law fairly for both the prosecution and the defence, whilst enforcingthe Parliaments will. However in conclusion it is immaculatelyclear that though a judge has infact many responsibilities and duties abidingthe law however Judicial law making does not exist and judges do not makelaws.The eighteenth century legal commentatorWilliam Blackstone stated that judges do not make law, they merely follow therules of precedent, discover and then declare the law which had always beenthere. Whenjudges make decisions, they are merely declaring what the law was and hasalways been. C.K.
Allen, in Law in the Making, explained the limits to judge-madelaw in the following terms, ‘the creative power of the courts is limited by theexisting legal material at their command’ which means they simply find materialand shape it. One writer likened judge-made law to tapestry, all that judges dois insert stitches here and there when enabled by litigation to do so, that iswhen a dispute raising the area of law is brought before the courts. Judges makepartial and discreet changes to the law, this is not however to say that judgesdo not make significant changes to the law. Parliament on the other hand, canremove and replace sections of the tapestry or undertake sweeping reforms ofthe law by wholly replacing the fabric.Distinguishing is the is the third and final method of avoiding precedents.It is a technique which allows a court to escape a binding precedent. A court maypoint to martial differences in the facts of the case constituting a precedentand the instant case.
In this way it can be decided that the ratio decidendi ofthe previous case does not apply because of the differences. Supporting thismethod is the case of Merritt v Merritt 1970 1 WLR 1211 Court of Appeal. A husband left his wife andwent to live with another woman. There was £180 left owing on the house whichwas jointly owned by the couple. The husband signed an agreement whereby hewould pay the wife £40 per month to enable her to meet the mortgage paymentsand if she paid all the charges in connection with the mortgage until it waspaid off he would transfer his share of the house to her. When the mortgage wasfully paid she brought an action for a declaration that the house belonged toher. It was held that the agreement wasbinding.
The Court of Appeal distinguished the case of Balfour v Balfour on the grounds that the parties wereseparated. Where spouses have separated it is generally considered that they dointend to be bound by their agreements. The written agreement signed wasfurther evidence of an intention to be bound.Unlike overruling,which involves separate cases, reversing, the second method of avoiding precedents,describes what a higher court would do in relation to a decision given by alower court in the same case. By reversing a decision, a higher court statesthat a decision of a lower court is correct it is said to be affirmed. In thecase of Gillick v West Norfolk &Wisbeck Area Health Authority 1986 AC 112 House of Lords Mrs Gillick was a mother with five daughters under the age of 16. Shesought a declaration that it would be unlawful for a doctor to prescribecontraceptives to girls under 16 without the knowledge or consent of the parent.The declaration was refused.
There are three distinct types of methods of avoiding precedents. The firstis overruling, this occurs when a later court decides that the law as stated inan earlier and different case is wrong and no longer represents the law. Overrulingcan only be done within the bounds of the doctrine of stare decisis. The supremecourt can overrule its previous decisions and those of lower courts, such asthe courts of appeal cannot overrule a precedent of the Supreme court.
When acourt overrules a previous case the effect is retrospective, the previous casehas never represented the law and the new case has always been the law. Supportingthis is an example where the supreme court depart from its previousdecisions. In Murphy v Brentwood thehouse of lords in effect overruled Anns v Merton. The defendant local authority failed to inspectthe foundations of a building adequately. When the building became dangerouslyunstable, the claimant, being unable to raise any money for repairs, had tosell the house at a considerable loss. He sought to recover his loss from Brentwood DistrictCouncil, but this action failed as the loss wasidentified as a pure economic loss.Judge-made law is referred to as the common law, which is developed fromjudgments handed down in court to decide cases brought before them.
It is mostoften used to make decisions about areas that are not included in Acts ofParliament. However, Judges are still required to interpret legislation, whichis the law made by Parliament if there is a dispute about the meaning or how toapply an Act in a case. These interpretations then become part of the commonlaw. Judge-made law is retrospective which means a statement of law in alater case applies to situations that may have already occurred.The difference between obiter dicta and ratio decidendi of acase is that as the statements are not the basis for the decision in a case,they may not have been the subject of full argument or judicial consideration. HoweverCertain superior courts are not bound by their own decision. Judicial precedent promotes certainty and allowsfor the orderly development of the law to be decided and applied withconsistency and fairness to all.
The ratio decidendi of a case is not the decision reached ina case but the rule of law upon which decision is based. Judges will often agreeas to the outcome of a case but disagree as to how the decision was reached,therefore leading to multiple judgements and multiple disagreements amongst thejudges of the Court of Appeal and the Supreme court impacting on the ratio decidendiof the case. If a judge dissents as to the decision to be reached in a case,then the judgement is to be ignored as far as the doctrine of precedent isconcerned.
In a case, other statements as to the law under consideration may bemade by judges which do not affect the outcome of a case. Such statements arereferred to as obiter dicta, which are not binding on later courts, they aremerely persuasive. For example, in R vHowe& Bannister 1987 2 WLR 568 the House of Lords held thatthe defence of duress was not available to murder. This was the ratio decidendi of the case. TheHouse of Lords went on to consider whether the defence should be available tothose who attempt murder and stated obiter dictathat the defence of duress should not be available to attempted murder.
The role of a judge is not to make laws, but to uphold thelaws which are formed by Parliament and the courts Whendeciding cases, judges must look to the relevant previous case law. In doing sojudges have to abide by stare decises, the doctrine of judicialprecedent, which means that like cases must be decided alike. Courts arearranged in hierarchy, thejudgements of superior courts serve as precedential bodies and are binding on inferiorcourts to follow an applicable holding of the same jurisdiction. For example,A principle stated in the supreme Court must be applied by lower courts likethe Court of Appeal or the High Court. A decision of a previous court will onlybe binding if the facts of the instant case are sufficiently similar to the previouscase so that the ratio decidendi or rule of law from the previous case shouldbe applied.
This essay seeks to establish several areas in which Judges do not make law, they merely uphold and applyexisting laws. The law of England and Wales primarily comes from two sources,The houses of Parliament and the courts. In relation to law made by the Parliament,a bill must be approved by both the House of Commons and the House of Lords andonce the bill receives the royal assent, the resulting Act of Parliament isrecognised as law.
Equally, cases decided by the courts which interpret Acts ofParliament or develop the common law are recognised as a source of law.Originally, the law made by judges through case law was the most importantsource of law, as Parliament met infrequently. However, with the predominanceof Parliament as the law-maker, legislation increasingly became the main sourceof law.