Do Judges Make Law Essay

1186 WordsMay 19, 20135 Pages
Do judges make law? And should judges make law? This is a very big controversial question that does a judge make law; in the reply of this question Lord Radcliffe said that “of course, does. How can he help it?” in making individual decisions courts are not only just deciding for the individual parties to the case, they may be also deciding the law for those litigants that come after the particular case before them. According to the separation of powers there are three different organs in state: 1-Legislative 2-Executive 3-Judiciary Erris Tottle said that three organs which he used to call (1-deliberative organ, 2-officials, and 3-Judges) should be present in the country, these three organs have their three different functions, legislature have the function of law making, executive have the function to implement those laws and judiciary has the role to adjudication. According to the theory of declaratory judges have no role to make law especially in those countries who already have a developed legal system, whose laws are already developed and the role of a judge is only to find those laws and apply it in making decisions, they have to interpret. The only authority to make law is parliament, parliament can even make law for that situation which is not occurred yet, and it can make law for future. In its purest form it denies the judiciary of any creative role at all. The declaratory theory of common law is useful in preserving the delicate constitutional balance between the judiciary and the legislature. Law making by a judge is to have two meanings: 1-Narrower meaning: it is the enforcement of the statute, thus courts can be said to make law simply by being an institution which applies statute. 2-Wider meaning: where the interpretation of the statutes involves the court in making law, when a judge feels a situation where a law should be amended or altered,

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