Judicial Creativity Essay

762 Words4 Pages
Discuss the extent to which judges do create and develop the law. Numerous different judges have different views on to what extent judges have creativity within the legal system, such as Lord Simons who believed he judges job is to administer justice according to legislation made my parliament and in common law old principles should be applied to new circumstances, therefore his view is that judges should not be creative, as it isn’t there job. On the contrary Lord Radcliffe believed that judges do create law, however felt it should be on the quiet, so the public don’t lose respect for the judiciary and legal system. Finally Lord Devlin opposed the overruling of the supreme court, as all lower courts are bound to it and that it would turn them into “undisguised legislators” which is the job of parliament, not of the judiciary. 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
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