Referring to Precedent and Statutory Interpretation, Discuss How Creative Judges Can Be, and Compare Their Contribution to the Development of the Law with That of Parliamen

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Referring to precedent and statutory interpretation, discuss how creative judges can be, and compare their contribution to the development of the law with that of Parliament. 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; Parliamentary Supremacy (A V Dicey), thus parliament remain the supreme law making body in the UK. Regardless, some would argue that the judges make law in this country; Lord Radcliffe in 1968, “There is never a more sterile controversy than upon the question of whether a judge makes law. Of course he does. How can he help it?” The constitutional role of the judiciary is to apply the law that parliament makes, as said by Lord Diplock, “Parliament makes the laws, the judiciary interpret them/” However, judges have the power to change the rules or make new rules through precedent or statutory interpretation, as mentioned in R v Sigsworth (1935) by Lord Denning, “We fill in the gaps.” In England and Wales the courts operate a very rigid doctrine of precedent which has the effect that every court is bound by the decisions made by courts above it in the hierarchy and in general courts are bound by their own past decisions. The doctrine of Precedent is the process whereby judges should follow previous decisions in similar cases to help maintain a degree of consistency in the way the law is applied in similar cases. It is based on the maxim “stare decisis” which means stand by what has been decided. The Ratio Decidendi (reasons for deciding) is the binding part of a judge’s decision, but how judges interpret this can vary, thus changing the impact it can have on future decisions. The obiter dicta (things said by the way) though not binding can still be used as persuasive precedent and so a

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