Are judges politicians in disguise? When reviewing the functions of the judges, and how and why decisions are made, there are many factors which should come into consideration. The judicial branch should interpret the law and constitution, and to make neutral and impartial decisions. Judges, in theory, should be fair, unbiased, neutral, impartial and not based or linked to any political party or movement. However, it has been argued in the past that judges are too alike to politicians, as decisions made by the Supreme Court judges have, and will not be mechanical, but in a lot of cases too biased and political.
Yet it is not a term that can simply be ignored as intellectually "void for vagueness," for at the heart of it are concerns about the very meaning and survival of law. Abandonment of the term not being a viable option, clarification becomes imperative. Meaning of Judicial Activism The terms "judicial restraint" and "judicial activism" describe how a judge judges, that is, how he applies the law to facts in the cases before him. The difference is that restrained judges take the law as it is and activist judges make up the law as they go along. Restrained judges respect the political process, whether they agree with its results or not, until it clearly crosses a clear constitutional line.
What is Judicial Activism? Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law. Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action. "Judicial activism" is when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Legislature, rather than limiting itself to the powers traditionally given to the judiciary.
According to this theory it can be said that the woman was not wrong to denounce her husband to the military. She acted out of obligation to follow the law that was enacted at that point in time and in doing so fulfilled her duties as a law abiding citizen. Whatever her motives were behind this does not matter. In the legal positivist’s view, the body of legal rules should exist without conscious regard for the norms of morality however its influence is not completely denied. There are legal rules that do not measure up to moral laws but they do not cease to be legal rules for example during the Hitler regime in Germany some rules were so unjust yet citizens were obligated to do so since it was required by law.
Kedrick King Lesson 1 assignment 1-1 How does statutory law come into existence? How does it differ from the common law? If statutory law conflicts with the common law, which law will govern? Statutory law comes into existence when elected officials pass laws. Common law differs because it’s a law that is created by judges is based on past court decisions.
Gradually, they began to follow their previous decisions under the doctrine of stare decisis which mean to stand by the decision. Over time, the body of law founded on previous decisions became sufficiently broad in its scope to justify the rule that all rulings had to be based on previous decisions. Point of departure to this discussion concentrates on the belief that in difficult cases judges can and do create new law. The application of precedent by judges, whether they are developing the common law, or interpreting statutes is the main mechanism whereby judges make law. On odd occasions, judges are called upon to give a ruling or
Martin’s argument on how the Charter is antidemocratic has six main premises. Firstly, Martin supports his claim by making a point that judges, as they hold no accountability for what their judgments, can “overturn deliberate policy decisions made by the elected representatives of the people where those decisions do not accord with the way the judges interpret the Charter.” Thus, the Charter, according to Martin, is antidemocratic. Secondly, Martin discerns the differences between liberalism and democracy, creating operational definitions for each. He explains that liberalism “is about individual rights,” and is “about the ability of individuals to do as they please without interference from the state.” Therefore, according to Martin, Liberalism “makes protection of the autonomy of the individual more important than the promotion of the welfare of the
Introduction The first part of the quotation implies that judicial precedent is a practice of the courts and not a set of binding rules. The second part states that as a matter of practice it is flexible and can be altered at the discretion of the court. It is therefore proposed that an in-depth examination of the doctrine of judicial precedent is carried out to determine whether the first part of the quotation is correct in its entity or whether it is partly correct or if it could be completely wrong. The United Kingdom although having an uncodified constitution has always preserved the concept of the separation of powers, the legislature vested with the role of making law and the judiciary applying them. Within this constitutional system, it is universally accepted and viewed that judges should not be making law but merely deciding cases in accordance with the established rule of law.
According to Hart, the idea that law consists merely of orders backed by threats is inadequate to explain modern legal systems. Modern legal systems have laws governing the formation and implementation of contracts, of wills, marriages and other executory instruments. Hart calls these types of laws “power conferring rules,” and argues that they are less in the nature of orders backed by threats, and more in the nature of rules creating a framework within which individuals can define the scope and limit of their rights, obligations and liabilities. Hart also considers another variety of laws, laws which define the scope and limitations of judicial and legislative power, laws which confer jurisdiction upon courts and govern the functioning of governmental institutions. He argues that it is impossible to view these laws as mere orders backed by threats either.
The judiciary are not elected representatives of the people and therefore lack legitimacy for law-making in a democratic society. However, there is amle judicial writing and scholarly discussion to conclude that in the English common law system the judiciary do perform a limited law-making function in incrementally developing the common law to ensure that it keeps pace with changes in social and economic conditions and remains sufficiently flexible to accommodate new situations. The extent to which any judge is prepared to innovate will depend on their view of the balance to be achieved between competing requirements of the common law. These are: The need for stability in the common law The need for certainty in the common law The need for flexibility in the common law The desire to do justice between the parties in the instant case The duty not to usurp (take over) the role