Do judges make law?

 Historically there are lots of arguments by the philosophers and the critics that judges make law or not. Actually judges are meant only to interpret the law. This can be seen that somehow they are making law but the question arises whether this is lawful or not. Declaratory theory is ignored by various ways. Judges make law by stating that the fact is significantly different from the cited precedent. The English judiciary continues to maintain its institutional commitment to the declaratory theory of law, a theory that can be traced back to Blackstone and beyond.

In short, what appear to be changes made to the law, by judicial decision, are to be regarded, rather, as declaring what the law is, and always was. In jurisprudential terms, of the adequacy of the theory but the recent decision of the Court of Appeal (Criminal Division) in R. v Cottrell1, R. v Fletcher2 brings into the practical difficulties that may attend adherence to that theory, as well as raising the issue of whether or not it is still appropriate to apply it to criminal appeals. 3 The court was faced with fall-out from the decision of the House of Lords in R. v J 4.

In that case, the House had decided that it was unlawful for the time limit on prosecutions for sexual intercourse with a girl under the age of 16, one of 12 months from the date of the alleged offence, to be circumvented by charging the intercourse in question as indecent assault, to which offence no such time limit applies. 5 Mr. Bowen examines the decision of the House of Lords in Kleinwort Benson Ltd v Lincoln City Council6, with its reaffirmation by the majority of the declaratory theory of judicial decision making, en route to their decision that there had been a mistake of law where the law was thought to have been settled prior to the decision.

The decision adopts the views of the Scottish rather than the English Law Commission in this respect, although it remains to be seen whose predictions will prove to have been correct. 7 1R. v Cottrell EWCA Crim 1644 2R. v Fletcher [2007] EWCA Crim 2016; [2007] 1 W. L. R. 3262 3 www. westlaw. co. uk (Article: A challenge to the declaratory of law) 4R. v J [2004] UKHL 42; [2005] 1 A. C. 562 5 www. westlaw. co. uk (Article: A challenge to the declaratory of law) 6 Kleinwort Benson Ltd v Lincoln City Council [1998] 3 WLR 1095 7 www. westlaw. co.uk (Article: Fairy tales and the declaratory theory of judicial decisions)ю

So judicial precedent is an important & distinctive element of English law is that the reasoning and decisions found in preceding cases are not simply considered with respect or as a good guide, but can be binding on later courts. This is known as the principal of stare rationibus decidendis; usually referred to as stare decisis. 8 In other way we can say that, bound to case law is the doctrine of binding precedent. This is followed by the judges of the court when they gave decision of any case. At that situation binding precedent is followed.

What stare dicisis means in practice is that when a court makes a decision in a case then any courts which are of equal or lower status to that court must follow that previous decision if the case before them is similar to that earlier case. So, once one court has decided a matter other inferior courts are bound to follow that decisions. 9 Judges from different court follow the precedent. Every court is binding upon its upper court & to the precedent. A hierarchy is followed in UK. Magistrates courts & Country Courts are bound by decisions of the High Court, the Court of Appeal and the Supreme Court.

Magistrates’ and Country Courts are not bound by their own decisions, neither do they bind any court other court, although they are expecting to exercise consistent decision-making. 10 The Crown Court is bound by decisions of the Court of Appeal and the House of Lords/Supreme court. Its decisions-at least those reported as of interest-are generally regarded as persuasive & worthy of being used in argument, particularly those made by High Court judges sitting in the Crown Court. 11 8 Learning Legal Rules, 7th Edition (James Holland & Julian Webb) page-154(6.2) 9 Learning Legal Rules, 7th Edition (James Holland & Julian Webb) page-154(6. 2).

10 CLRI Subject Guide (pg-55) (University Of London international programmes) 11 CLRI Subject Guide (pg-55) (University Of London international programmes) The High Court’s decisions are binding upon all inferior courts, but not upon other High Court judges, although in practice they rarely go against each other’s decisions. High Court decisions are not binding upon the Divisional Court (civil or criminal), where two or more High Court judges sit together. All Court of Appeal and House of Lords/Supreme Court decisions are binding upon the High Court.

12 The Divisional Courts of the High Court’s decisions are binding upon High Court judges sitting alone and also the inferior courts, except the Employment Appeal Tribunal. The Divisional Courts are bound by the Court of Appeal and the Supreme Court and also by its own decisions. 13 The Court of Appeal (Civil Decision)’s decisions are binding upon the Divisional Courts of the High Court, individual High Court judges and the inferior courts, including the Employment Appeal Tribunal. It must follow decisions of the House of Lords/Supreme Court. In Young v Bristol Aeroplane Co.

Ltd14, it was held that the Court of Appeal (CA) is bound by its own decisions unless: it is a Court of Appeal decision given per incuriam (i. e. with the omission of a very important component which subsequently flaws the decision), it involves an earlier conflicting decision by the Court of Appeal, when the CA may then choose which case to follow, the earlier Court of Appeal decision has been expressly or impliedly overruled by the Supreme Court. 15 The Court of Appeal (Criminal Division) appellate court is bound by House of Lords/Supreme Court decisions and is generally bound by its own decisions, but not so rigidly as in the Civil.

Decision, since the liberty of the appellant is at stake. 16 The House of Lords replaced by the Supreme Court in 2005, the House of Lords no longer needed to be bound by its own decisions, although it was stated in the Practice Statement Judicial Procedure (1966) that this rule was to be used cautiously, especially in property and taxation matters and also the criminal law. Great Weight is attached to statements made in the House of Lords even when they are said obiter. Any House of Lords decision can be overridden by an Act of Parliament. 17.

12 CLRI Subject Guide (pg-95) (University Of London international programmes) 13 CLRI Subject Guide (pg-95) (University Of London international programmes) 14Young v Bristol Aeroplane Co. Ltd [1944] KB 718 15 CLRI Subject Guide (pg-95) (University Of London international programmes) 16CLRI Subject Guide (pg-96) (University Of London international programmes) 17CLRI Subject Guide (pg-96) (University Of London international programmes) Precedent in other courts may be persuasive depending upon the status of the court, the reputation of the judge and the country in which it was established.

18 Sometimes judges from these courts don’t follow the precedent & break the declaratory theory by giving their own decision. We shall now see how this may happen. Firstly, at least in a country that does not adhere to the stare decisis doctrine, judicial activity and bioethics both refer to a flexible system of norms. Secondly, judicial doctrine and bioethics have another feature in common, in that they are factual and practical systems applying rules to specific situations on a case by case basis.

19 Obviously judges will sometimes formulate a new principle, but this is almost always presented as an outgrowth or even a clarification of a former principle, rather than a new construction. A famous example, which will be used as a case study, is the enunciation by the House of Lords in Donoghue v Stevenson20 of the duty of care principle that became the foundation of the modern law of negligence. 21 There are also important distinctions between the contexts of Lynch and Clegg.

Although the defences of duress, self-defence and the use of force in the prevention of crime were created by judges, the essential difference is that in the latter case Parliament had passed the 1967 Act which did not create a defence that related to the excessive use of force. This would make the present case very different from Lynch, precisely because one of the most compelling reasons for overruling this case was the fact that Parliament had not legislated. Lord Simon’s speech from Lynch thus becomes relevant.

Although Lord Simon acknowledges that judges do make law, they have to refrain from so doing when policy matters are involved. Picking up on Lord Simon’s principle, Lord Lloyd argues that in distinction to Reg. v. R. Where the House of Lords did change the common law without waiting for Parliament to legislate, the present issue is indeed one for legislature. 22 18CLRI Subject Guide (pg-96) (University Of London international programmes).

19http://www. google. com. bd/url? sa=t&rct=j&q=do%20judges%20make%20law&source=web&cd=3&cad=rja&sqi=2&ved=0CDsQFjAC&url=http%3A%2F%2Fwww.iales. org%2Fdoc_anglais%2FDo%2520judges%2520make%2520law. pdf&ei=NsN_UaGvJYzprQfLvoCQAQ&usg=AFQjCNH6uEYSA2sFU_GY6ambe_JIZVYFOw&bvm=bv. 45921128,d. bmk 20CLRI Subject Guide (pg-110) 21Donoghue v Stevenson [1932] AC 562 22THE POLITICS OF THE COMMON LAW (ADAM GEAREY, WAYNE MORRISON AND ROBERT JAGO) (pg-91). It is hard to know what the status of these guidelines is. Although C. v. DPP has been an influential decision in the area of criminal responsibility, Lord Lowry’s thoughts on judicial activism do not appear to have been cited.

However, these principles go some way to articulating the areas where judges can safely legislate. The grounding idea appears to be deference to Parliament ‘when the solution is doubtful’ or Parliament has already considered the issue & refuse to legislate. There is also a presumption against changing the law; and change should only come when it brings with it ‘finality and certainty’. Lord Lowry’s guidelines are congruent with those of Lord Lloyd in Clegg. 23 A judge thus must work with the ‘existing law’.

Although this is in itself ‘unsatisfactory’ a judge was unsuited to consider the wider issues that were attended on the decision in this given case. Given this circumstances, Lord Browne-Wilkinson considered that was ‘imperative the moral, social and legal issues raised by this case should be considered by Parliament’. It was up to Parliament, and the ‘democratic process’ to give voice to principles that reflected a consensus. 24 Gearey et al commented about the law making process. He observed that the way in which judicial law making has been affected by Human Rights Act 1998(HRA).

The argument is ‘interstitial’ law making and the on the rise of the common law is an entirely proper judicial activity. Developing a principled jurisprudence of human rights is also entirely in keeping with what Parliament has instructed the judges to do in passing the HRA. 25 Griffith stressed that, contrary to conventional opinion, judges are political, and that their politics are essentially those of an illiberal group dedicated to frustrating progressive government policies. He also demonstrated that, in the areas of decision making, this was far from the truth.

26 23THE POLITICS OF THE COMMON LAW (ADAM GEAREY, WAYNE MORRISON AND ROBERT JAGO) (pg-91) 24THE POLITICS OF THE COMMON LAW (ADAM GEAREY, WAYNE MORRISON AND ROBERT JAGO) (pg-92) 25CLRI Subject Guide 26THE POLITICS OF THE COMMON LAW (ADAM GEAREY, WAYNE MORRISON AND ROBERT JAGO) (pg-126) The limits that are on these directions as the courts have said are that these do not amount to stepping into the shoes of the legislature and that the guidelines given by them are only to operate till the legislature steps in to make a law.

27 However, this is not to say that the courts can do what they want. There has to be a mean found between too much activism and too little activism. The former might lead to a imperiling the legitimacy of judicial power and the latter may lead to neglect or under enforcement of the constitutional obligation of achieving and protecting the rights of the citizens, ensuring good governance and achieving the constitutional goals. ‘Judicial activism’ should not become ‘judicial adventurism’ and lead a judge going in pursuit of his own notions of justice, ignoring the limits of the law.

28 The role in making law belongs to legislative section but not the judges. So in terms of judicial activities they can apply any judgment which is necessary according to the situation. But sometimes it doesn’t happen and judges come in the role of making law by giving decision breaking the previous precedent of common law and also by applying discretionary powers during interpreting laws. And this is one of the top arguments between the Lords and the critics whether judges make law or not. 27 CLRI Subject Guide.

28 www. westlaw. co. uk (Article: Trial of strength: the battle between ministers and judges over who makes the ? law) BIBLIOGRAPHY: Primary Sources: Statute: 1. Human Rights Act 1998 Cases: 1. R. v Fletcher [2007] EWCA Crim 2016; [2007] 1 W. L. R. 3262 2. R. v J [2004] UKHL 42; [2005] 1 A. C. 562 3. Kleinwort Benson Ltd v Lincoln City Council [1998] 3 WLR 1095 4. Young v Bristol Aeroplane Co. Ltd [1944] KB 718 5. Donoghue v Stevenson [1932] AC 562 6. R. v Cottrell [2008] EWCA Crim 1644 Secondary Sources Books: 1.

THE POLITICS OF THE COMMON LAW (ADAM GEAREY, WAYNE MORRISON AND ROBERT JAGO) 2. Learning Legal Rules, 7th Edition (James Holland & Julian Webb) 3. CLRI Subject Guide (University Of London international programmes) Website: 1. www. westlaw. co. uk 2. www. iales. org Article: 1. Fairy tales and the declaratory theory of judicial decisions, Andrew J. Bowen 2. A challenge to the declaratory of law, Peter Mirfield 3. English judges as law makers, Antony Lester 4. Trial of strength: the battle between ministers and judges over who.