The traditional view of the law making process is that parliament makes the law though acts of parliament, as they are democratically elected to make law, whereas judges aren’t so they merely apply it in court to the cases presented to them. However through judicial precedence and statutory interpretation judges are often seen to be making the law, which is shown in McLoughlin v O’Brian where this case introduced the principle of “secondary victims” to be able to succeed in nervous shock. Generally the courts operate a doctrine of precedence which makes every court bound by the decisions made by the courts above it in the hierarchy and courts will be bound by their own precedent decisions. This doctrine is where judges should follow similar decisions made in previous cases to maintain a degree of certainty within the legal system and is based on “stare decicis” which means to stand by what has been decided. However the practice statement allows the supreme court to change the law If they believe that an early case was wrongly decided, but
The Greatest Debate of American history concerns the mysterious, and least understood branch of the United States government: The Supreme Court. The differences between those who favor activism and those who favor restraint are all apart of the biggest riff in our justice system since the beginning of the nation. Conservatives, or those who favor Judicial Restraint, believe the original intent of the founding fathers is (written in stone and it is not our responsibility to change such a great document) suitable for all generations, past, present, and future. These people believe that they have the power to interpret the founding fathers, so they have the power to manipulate the law, and power such as that should only rest in the hands of the executive and legislative branches. On the other hand, the liberals, or Judicial Activists, believe that the founding fathers recognized that standards of their time wouldn’t apply to the future, so therefore left the constitution broadly based and available for contemporary interpretation.
The main flaw with the constitution of the United Kingdom is that it allows the government of the day too easily to remould constitutional issues in ways which suit their own interests. Critically discuss. This essay aims to critically analyse arguments concerning whether the constitution of the United Kingdom can be altered by the government of today, in modes which suit their best interests. In relation to the statement above, a conclusion will be deduced after looking into the functions of the constitution, the theories of Parliamentary Sovereignty and the Separation of Powers, alongside means by which the government has sustained power. Professor KC Wheare defines the constitution of a state as: “… the whole system of government of a country, the collection of rules which establish and regulate or govern the government.” The evolving nature of the UK constitution implies that it is somewhat straightforward for the government to alter the constitution and adapt it to ever changing times.
The constitutional role of the judiciary is to apply the law that parliament makes, as said by Lord Diplock in Dupont V steel (1980), ‘Parliament makes the laws, the judiciary interpret them’. However, judges have the power to change 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’. The doctrine of precedent is based on the requirement that judges must follow decisions made in earlier cases (stare decisis), and on the face of it would seem to limit their freedom to be creative. First of all, there is the hierarchy of the courts, which means that courts are bound by decisions of other courts higher up in the hierarchy. Although with the use of the 1966 Practise Statement, the Supreme Court is allowed to depart from its own earlier decisions, as for example in Hetherington v British Rail and Shivpuri and also in R V Gemmell and Richards (2003) where the Supreme Court overruled the decision in Caldwell by using the 1966 Practise Statement.
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
I reason why this source is effective is that it can be interpreted to fit into any situation in court and it sets a guide line for judges when dealing with different cases which would help things run more smoothly for the judges when in court. However the downside to Common Law is that as it’s not written down, no one is clear on the rules or the law, meaning they can decide whether they follow it or not. Ministers can also clarify or amend it meaning it doesn’t have a massive amount of power. This
Methods that judges sitting in the Supreme Court can use to avoid following precedents There are several methods for judges in the Supreme court to avoid following precedents. One method is the use of Practice Statement 1966. The Practice Statement allows the Supreme Court to change the law if they believe that it is wrongly decided. It gives them the flexibility to refuse to follow previous decisions when ‘it appears right to do so’. The first use of the Practice Statement was in the case of Conway v Rimmer, although its first major use was in the case of BRB v Herrington overruling the decision in Addie v Dumbreck about the law on the duty of care owed to a child trespasser.
In this essay I will explain the arational actor model, its contributors, and its characteristics in comparison to the rational actor model and being irrational. I will further explain the rule making process and the rules that bureaucrats make to implement, prescribe, or interpret legislation. This is very important process that takes a great deal of discretion to interpret laws correctly. Plain and simple, sometimes congress passes legislation that is in a very-hard-to-understand dialect. The very own bureaucrats have trouble interpreting the laws, but it is their job to interpret, implement, and prescribe the laws.
We could attempt to discriminate between the function of the judge and the function of the jury under existing law. For our purposes here it is sufficient to say that it is the function of the jury to find the facts in a given case and the function of the judge to interpret the law relative to those facts. If we turn to our legal history as it extends back into the Mother Country we find that at the time America was being discovered there was no clear concept of trial by jury. We find trial by ordeal. Shortly before that, and to some extent contemporaneous with it, we find trial by battle.
Judicial Activism is a concept where judges should interpret laws loosely, using their power to promote their preferred social and political goals. This includes the willingness or tendency to overturn existing precedent, inject one’s views into decisions, issue broad rulings with wide implications, and strike down laws created by elected legislatures. The Supreme Court is considered very strong in the notion of Judicial Activism, and essentially sets precedents for future cases. Judicial restraint, on the other hand, is where legislators, not judges, make laws. Judges base their judicial decisions on the concept of stare decisis, which deals with the court’s obligation to honor previous judiciary decisions.