I have been asked to discuss the extent, if any; whether the doctrine of president curbs judicial creativity. Do judges make law; or does it stem from judicial precedent? Judicial precedent is the process whereby… What is the doctrine of judicial precedent? Must judges in all circumstances follow legal precedent…? The doctrine of judicial precedent is that, to make common law fair, judges in their rulings should follow past decisions made by other judges, in similar cases. This is based on the maxim 'stare decisis et non quieta movere' which means 'stand by what has been decided and do not unsettle the established'.
This creates fairness and provides certainty in the law. Judicial precedent is known as 'the tool of common law'. It is one of common law's main sources. Although judicial precedent is known as 'judge made law', judges follow judicial precedent to avoid making new law. If judges frequently made law instead of enforcing it, we would not have a democracy in Britain. Judges want to protect democracy and them making law could lead to a dictatorship. 'Ratio decidendi' can be questioned on when…
Ratio decidendi is a Latin phrase meaning "the reason for the decision. " It is a legal phrase which refers to the legal, moral, political, and social principles used by a court to compose the rationale of a particular judgment. Unlike obiter dicta, the principles of judgment for ratio decidendi stand as potentially binding precedent, through the principle of stare decisis. The process of determining the ratio decidendi is an analysis of what the court actually decided – essentially, based on the legal points about which the parties in the case actually fought.
All other statements about the law in the text of a court opinion – all pronouncements that do not form a part of the court's rulings on the issues actually decided in that particular case (whether they are correct statements of law or not) — are obiter dicta, and are not rules for which that particular case stands. Judicial Precedent involves the following: Stare decisis, is a Latin term; that when translated means "to stand by things decided". It is a Latin legal term, used in Common Law to express that prior court decisions must be recognized as precedents, according to case law.
As I have mentioned above the full term is: stare decisis et non quieta movere. Translating to "stand by decisions and do not move that which is quiet". For example the High Court must follow decisions of the Court of Appeal and the House of Lords. The Court of Appeal is also bound by the House of Lords; while the House of Lords is binding onto itself, it was only binding when the case 'Tramways V London County County Council (1898)', where it found itself in the interest of certainty. Of course, it doesn't necessarily have to follow its previous decisions according to a practice statement released in 1966, issued by the LC.
Which basically stated the House Of Lords 'would treat its decisions as normally binding unity it would depart from these when it appeared right to do so'. Anything said 'orbiter dictum' meaning "by the way", in the original case is merely of persuasive origin, because it was not strictly relevant to the matter in issue and does not have to be followed. Where there is no existing precedent, the Court will 'declare' the law and the case will become original precedent, for example the following case: Airedake NHS v Bland (1993). An example of 'stare decisis' is in the following case:
Donoghue v Stevenson (1932) The decomposing snail in the ginger beer case. The HoL held that a manufacture owed duty of care to the consumer that products are safe. "Products" have since been held by later courts to include not only foods and drink but also: underpants; motor cars, hair dye, lifts; and chemicals. The HoL commented that a defence should not be available on a charge of attempted murder. Although this statement was 'orbiter', it was following by the CA (and then the HoL) in R v Gotts (1992) when a son attempted to kill his mother under duress from his father.
Decide whether Judges do/do not make Law there are three main points which must be discussed. Firstly, the first point argues that a "great deal of our law is and always has been case law, made by judicial decisions", meaning that it's believed a great deal of our law is made by the doctrines of judicial precedent. Contrary to judicial precedent, contract and tort law is still largely judge-made; and according to point one has had many profound effects in our legal system.
Statues have occasionally been passed on these subjects, and occasionally Parliament has attempted to embody whole cases of common law in statutory form, these still embody the principles created by judges. Application law… where case law or statue, to a particular case is not usually an automatic matter. The problem with this is that terminology may be vague or ambiguous, and new developments in social life have to be accommodated, and the procedure requires interpretation as we as application.
It also suggest that judicial precedent does not necessarily make a particular decision obvious – so the decision in question is open to interoperation by the judges. The problem is with decisions is that they aren't always obvious; also it may be problematic if two decisions are conflicting. This is one of the exceptions in the Court Of Appeal where they can choose between two decisions, and choose which one to follow; as in the 'right' one in their opinion. Judges also make their own decisions when precedents do not spell out what should be done, thus they have some ability to make Law…
where there are no existing precedents. Judges also haven't been given an exact role within the Legal system; thus they possess the ability to define their own role, and the roles of courts generally in the political system, more or less as they please. An example of this is, where they have given themselves the power to review decisions of any public body, even when Parliament has said those decisions are not to be reviewed. Judges also contradict themselves as they have made it quite clear they will not, unless forced by very explicit wording, interpret statues as encroaching on common law rights or judge made-law.
Thus proving the theory that judges do indeed define their own role in the Legal system, and make law too some extent. An example of how they control the operation of case law with reference to Parliament, is the 1966 Practice Direction announcing that the House of Lords would no longer be bound by its prior decisions, which henceforth made case law more flexible and thereby gave more power to judges, this decision was made on the court's own authority, without needed permission from Parliament.
A case where the House of Lords explained its approach to judicial law-making was C (A Minor) v DPP (1995), which questions children's liability for crime. The law defence 'doli incapax' provided the defendant was aged between ten and fourteen could be liable for a crime committed only if the prosecution could prove that the child in question knew that the crime he/she did was against the law. Do Judges make law…? Too an extent I believe that judges make law, in which they can influence the decision made.
They can also intercept the precedent where said precedent isn't spelt out for them, thus judges nevertheless have to make the decision for the case. Also judges have been left to define their own role, within the legal system, and the role of the courts generally in the political system. Thus they can define their own role as they please, without anyone to correct them on said role. Judges are also inhibited by the fact they have to follow precedent, unfortunately there may be conflicting precedents whereby the implications may be unclear, and so they have to make their own decisions on the ruling of the case.