Do Judges Make Law - LawTeacher.net.

Judge-made law is the foundation of common law where the doctrine of precedent aroused. Doctrine of precedent requires that whatever decision is made by the higher courts, lower courts must follow and make the same decision in the same cases and that’s why common law is also called precedent law and precedent means using the same case from before as an model or guide.

Do Judges Make Law Critique Essay Introduction A law is an obligatory rule of conduct imposed and enforced by the sovereign.Therefore the law is the body of principles recognized and enforced by the state in the application of justice.The law is mainly made by a parliament, a legislative body given power by the constitution to draft law.

Do Judges Make Law Critique Essay Free Essays - PhDessay.com.

Revision:Judicial creativity essay The traditional view of the law making process is that Parliament makes the law through acts of parliament and delegated legislation and judges merely apply it in court to the cases presented before them. The main reason for this being that Members of Parliament are democratically elected to make law.Thus, when a judge confirms or follows a law passed by a legislature he is only confirming the law, as judges are supposed to do; he or she is not the one making the law. In the 19th century, the judges generally adopted the position that they were not concerned with the justice of their decisions, and that they did not make law, but merely interpreted it.There are two main sources of English Law- legislation and cases. When interpreting legislation judges must ascertain the intention of Parliament and, except insofar as they apply the mischief rule of interpretation, they do not make law.


The declaratory theory of law has often been used by members of the judiciary and constitutional lawyers as a shield against the accusations of others that judges do in fact create law. The issue with the creation law by the judiciary is that the judiciary is an unelected body and therefore not accountable to the general public for their actions and judicial reasoning.As a common law in most countries, this principle will then be applied by many others through the policy of judicial precedent and so to this extent, judges do actually make law. In addition, judges also make law by the principle of binding precedent.

In conclusion, judges do not have the mandate of the people to make law. The legislature of the parliament makes law, as they are the ones that are elected by the people so they have the mandate of the people to do so. Judges are merely interpreting the laws made by parliament.

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