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The Judiciary

April 14, 2017 • admin

Historically, law was regional as different regions had different laws. However, once Great Britain was established, the same law was applied by judges across the country and this became known as the ???common law??™. In today??™s society, Lord Simon of Glaisdale said ???I am all for recognising frankly that judges do make law??™. There is unpredictability in case law as to when a court will make law and when law making will be left to Parliament. However, in R v R [1992] 1 AC 599, the courts abolished a 256-year-old rule that rape was not possible in marriage. The problem of fixity, law being inflexible, was solved by allowing the courts to set precedent. As the status of women changed, the judges assisted with law making in adapting it to society as it changed. Lord Keith stated that ???the common law is [??¦] capable of evolving in the light of changing social, economic and cultural developments??™. This statement is quite true in modern times.
In following precedent, the judiciary provides consistency and fairness in the law by deciding cases on a like-for-like basis. Also, since precedent ensures certainty, it can assist in predicting the outcome of cases. This makes the legal process more efficient and saves time for judges, lawyers and clients as cases to not have to be reargued and it gives people knowledge on how to behave in order to avoid breaking the law.
In setting precedent, judges create and refine the law. This gives flexibility to their role and solves the issue of fixity. Although there is a court hierarchy and precedent is usually followed, there are exceptions which allow the court to be able to make law. In Young v British Aeroplane Co. Ltd [1994] 2 All ER 293 these exceptions are listed. This allows for the courts to overrule cases and assist with law making.
As mentioned in R v R [1992] 1 AC 599, judges can overrule precedent and therefore create new laws. They can also distinguish cases, by deciding that the ratio, which is the binding precedent, is not applicable to the facts of the new case. Thus when deciding the new case they create law through setting precedent. This may occur when there is a new development in technology for example.
By overruling cases, fixity is solved by the fact that by creating precedent it has a retrospective effect. If a ruling was given per incuriam, or unjustly, the old law is thought of never to have existed when a new precedent is set.
Another role of the judiciary is statutory interpretation. If a word in a statute is unclear then judges need to clarify its meaning. They do this by using rules, intrinsic and extrinsic aids, and the rules of language. Statutory interpretation assists with law making as it clarifies the meaning of statutes and the intent of Parliament.
One rule is the golden rule which was used in Adler v George [1964] 1 All ER 628 to avoid absurdity in a case where the courts extended the literal wording of the statute to cover the offence committed by the defendant. This helped to clarify the law and have its intended effects.
In Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 583 the judges developed the law by permitting the Hansard to be used when determining the intent of Parliament. This extrinsic aid can now be used to assist with law making.
In conclusion, the judges do assist with law making as they create law by setting precedent, and they clarify law through interpreting statutes. As society changes so must the law. If the common law had not developed it would be the same now as it had been at the beginning. Since the common law is organic and constantly developing it keeps its practical relevance.
Although it may be unconstitutional for judges to make law, ultimately it saves on parliamentary time, and if a decision is made by the judiciary where Parliament disagrees, then they can pass legislation which has authority over case law.

Categories: General

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