Do Judge Make Laws?

We talked about the superiority of the parliament, and that only the parliament can make laws in the legislation. But, there is something that confuses the sovereignty of the parliament, which is the “judge-made law”. Is there such thing as a judge-made law? What is a judge-made law? A judge-made law is when a judge applies or extends an established rule to new facts, or decides that the particular rule do not take effect on certain situations, thus, making a change in the law. However, when it comes to this, it does not mean that the judges have the power to change the law, nor make new laws.

All these laws “made” by the judges are inferior to the parliament and delegated legislation thus can be overruled. Until the judge-made law is overruled, it is considered as a precedent and stands as a decision on non-statutory points of law, and is subjected to the same rule of stare decisis. The reason why we have judicial precedent is that most of the English laws are derived from the statutes and common law. It then falls into the hands of the judges to interpret them and evolve the law to make a better law. Judicial precedent, known also as the judge-made law, has two meanings.

Firstly, it means the process where the judges of lower or equal courts follow the decision of the judge from previous cases. Secondly, it refers to the decided case itself, where a ‘precedent’ is set to be used in the future cases. The doctrine of judicial precedent in the English law is one that involves the application of the principle of stare decisis. This principle is set that the Courts of Appeal is bound to follow it’s own previous decisions, and that each court is bound to follow the decisions imposed by the courts above them in the hierarchy.

However, since the UK joined the European Union, the courts are bound to follow the EU law given by thee European Courts. RATIO DECIDENDI & OBITER DICTUM According to the Oxford dictionary of law, a ratio decidendi is the principle or principles of law on which the courts reaches its decision . Obiter dictum is something that is said by a judge wile giving judgment that was not essential to the decision of the case . The ratio decidendi and orbiter dictum both essentially influences the decision-making or the judgment of a judge.

When a judge delivers his judgment in a case, he outlines the facts that he finds that have been proven as evidence. Then, he uses those facts and applies them to the law in order to reach a decision. Furthermore, a ratio decidendi of a case is where the decision of the judge is based together with the principle of the law. Then, when giving his judgment, the judge may go on to speculate about what would have happen if the facts may have differed. This is the obiter dictum in the case. Consequently, the ratio decidendi is the binding part of the judicial decision, whereas, the obiter dictum is not binding.

The obiter dictum of the case acts as only to support as a persuasive authority in later cases. But sometimes, certain opinions of a case in the House of Lords are mistakenly treated as obiter dictum at first sight. On closer inspection, these opinions are not seen as obiter dictum but merely forming part of a ratio decidendi. Some example of this occurrence is the Rondel , Hedley and Panalpina case. Such occurrence is considered rare and only occurs when the House of Lords did not wish to lost present opportunity for clarifying the law or providing guidance for lower courts in the future. AVOIDING JUDICIAL PRECEDENT IN PRACTICE

Reversing: Where a higher court in the hierarchy overturns the decision of a lower court of appeal in the same case. Overruling: Where a principle laid down in the lower court is turned down by a higher court in a different and later case. In example, in 1963, in the Hedley’s case as mentioned from above, the House of Lords held unanimously that there could be liability in the English Law for negligent misstatement. This statement given by the House of Lords overruled the earlier Candler’s case in 1951. At the same time, the dissenting judgment of Lord Denning LJ in Candler was supported in the Hedley’s case.

Judges cannot make new law by their precedent. We know it, as the judges do not assume a power that can create new laws. What the judges do is attempt to assert what the common law is and has been from the time it existed. But, there will always be new situation that arises and new complications of facts, or even presented with new facts, and this is the time where the judges are obliged to apply what the precedent has set for them to the cases. Thus, instead of new laws, what the judges merely do is to re-creating new state of facts from old principles.

Lord Browne-Wilkinson said that the theoretical position has been that the judges do not make or change the law . What they do is to discover and declare the law that is throughout the same. According to this theory, when an earlier decision of the case is overruled, the law has not change. But as rebutted by Lord Reid, he said that this theoretical position is like a fairy tale in which no one any longer believes in. In truth, the judges do make and change the law. Furthermore, Lord Reid stated that the entire common law is judge-made and only by judicial change in the law is the common law kept relevant in a changing world.

With Lord Reid’s statement, it is clear now that the theoretical position that judges do not make and change the law is old fashioned, and it is accepted in fact that judges do actually make new laws. This can be portrayed in the case of Kleinwort where the House of Lords abolished the common law rile that money paid under a mistake of law is not recoverable. THE COURT HIERARCHY THE EUROPEAN COURT OF JUSTICE Under Section 3(1) of the European Communities Act 1972, the decisions of the European Court of Justice are binding, in matters of Community law, on all courts up to and including the House of Lords.

Thus, binding the UK law to be overruled by the EC law when there is a conflict in the law. THE HOUSE OF LORDS This is the highest court in the land unless a matter of EC law is involved. The House of Lords was bound by its own previous decisions until 1966 when Lord Gardiner LC announced a change of practice. It is stated that although the House of Lords would treat its decisions as normally binding it would depart from these when it appeared right to do so . Ultimately and the utmost important, a decision of the House of Lords binds all lower courts. COURT OF APPEAL (CIVIL DIVISION).

The Court of Appeal is bound by the decisions of the House of Lords although they consider them to be wrong. In Young’s case, the Court of Appeal held that it was bound by its own previous decisions subject to the following three exceptions. Firstly, they are bound when its own previous decisions are in conflict, thus, the Court of Appeal must decide which to follow and which to reject. Secondly, the Court of Appeal must refuse to allow for a decision of its own that are not in par with the decision of the House of Lords although its decision has not been overruled by the House of Lords.

And lastly, the Court of Appeal do not need to follow a decision of its own if satisfied that it was given per incuriam. The decisions of the Court of Appeal itself are binding on the High Court and the county courts. COURT OF APPEAL (CRIMINAL DIVISION) In theoretical principle, there is no difference in the application of stare decisis in the civil and criminal divisions of the Court of Appeal. However, when it comes to practice, in addition to the Young’s case exceptions, because a person’s liberty may be at stake, precedent is not followed as rigidly in the criminal division.

In Taylor’s case , the Court of Appeal held that in ‘questions involving the liberty of the subject’ if a full court considered that ‘the law has either been misapplied or misunderstood’ then it must reconsider the earlier decision. THE HIGH COURT The High Court is bound by the Court of Appeal and the House of Lords but is not bound by other High Court decisions. The decision of individual High Court judges binds the county courts. CROWN COURTS The decisions made on points of law by judges sitting at the Crown Court are not binding, though most of them can be used as persuasive authority.

Therefore, there is no obligation for other Crown Court judges to follow their decisions. COUNTY COURTS AND MAGISTRATES’ COURTS The decisions of these courts are not binding. They are rarely important in law and are not usually reported in the law reports. THE ADVANTAGE OF JUDICIAL PRECEDENT We’ve come to a point where we agree with Lord Reid that with judicial precedent, the judges do make the law, although the theoretical position says otherwise. It is as though that the courts are taking over the Parliament’s job in law making. Definitely, we can see no good in this.

But, why does judicial precedent still have effect in the legal world? Well, this is because with judicial precedent, there is certainty in the law. By looking at existing precedents, we are confident that it is possible to predict what a decision will be and plan accordingly to previous cases. Then, we will go to courts well prepared and clear with the law. Also, with judicial precedent, there will be uniformity in the law. Similar cases with similar facts will be treated in the same way in no fear of biasness or mistrial in another case.

With uniformity, we will understand the importance to give the legal system a sense of justice and to make the system acceptable to the public. Furthermore, the judicial precedent is easily adaptable. There are a number of ways to avoid precedents and this enables the legal system to change, evolve and to adapt to new situations. Similarly, the judicial precedent is practical in nature as it is all based on real facts in cases. THE DISADVANTAGES OF JUDICIAL PRECEDENT With all the critics on the judicial precedent, we can learn that judicial precedent has its disadvantages too.

Firstly, with judicial precedent, there will be difficulties for the decision makers when it comes to deciding what the ratio decidendi of the particular case is, especially when there are a number of reasons stated down by the judges in the binding cases. Furthermore, when there is a precedent binding to a current undecided case, there may be a considerable wait for a case to come to court for a point to be decided. Lastly, every case is different, thus, creating far too much case law. The precedent through time has become way too complex and it will not stop here.

Also, with the amount of case law growing, there have been some critics that there is certain precedent, which is outdated and still used until today. This is because the cases can easily be distinguished on their facts and even if there is just a little difference in the facts of the cases, the judges will use it as a reason avoid following an inconvenient precedent. CONCLUSION Referring to the question to discuss that there is no such thing as judge-made law and for the judge does not make law.

Well, in theoretical position, it is correct and well understood that judges, in the English law, do not have the power to create or change the law. But accordingly, the judges are able to set binding precedents in relation to the similar fact of cases from the first binding case to the next one after. Well, of course, it is set that only the highest court in the hierarchy are able to set permanent precedents that only they can reverse it by the same courts. But, come to look at judicial precedent, whether or not it has it advantages or disadvantages, it is already set and are practicing in the law.

Though, it is true that judicial precedent do actually evolves the way the cases are decided by different judges and forms uniformity and certainty in the common law. On the other hand, everything has its disadvantages also. One that concerns us is that the case law is overgrowing amount of case law. The judges used the doctrine of overruling to simply disregard binding precedents, even if the facts of the case differ by just a little. This will set complexity to the other judges in other courts.