Judicial Creativity and Fault

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Judicial Creativity Under the theory of separation of power, Parliament makes UK law while the role of judges is to apply the law to the cases. However, in reality, do judges make/develop the law? Like Lord Radcliffe said in 1968 “there was never a more sterile controversy than upon the question whether a judge makes law. Of course, he does. How can he help it?” Judges in the UK do develop the law through both the operation of the doctrine of judicial precedent and statutory interpretation. In precedent, judges were thought to not make new law. However, it is now recognised that they do use precedent to create new law or extent old principles in various areas. In criminal law, judges have played a major role in developing the law on intention (Vickers 1957 – intention for murder includes intention to cause GBH, later was confirmed in Cunningham 1982; or Moloney 1985, Nedrick 1986 and Woolin 1998 and the law on foresight of consequences in relation with intention). Judicial decisions have also effectively created new crime as in Shaw v. DPP (1962) – offence of conspiracy to corrupt public morals, or R v. R (1991) – rape within marriage is a crime. Also, in contract and tort law, nearly all the main rules come from cases decided by judges. Many of them were made in the last century or so but still affect today law e.g. Felthouse v. Bindley (1863) – silence can not be deemed as consent (acceptance of an offer) or the neighbourhood principles produced in Donoughue v. Stevenson (1932). So how can judge create law through the doctrine of precedent? The basic doctrine means every court in the UK is bound to follow any decision made by a superior court and in general, appellate courts are bound by their own decisions. Although this appears that the courts are not allowed to develop law, there are ways in which the judicial precedent can be avoided, in turn, allowing
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