Judicial Function in Creating Common Laws - Essay Example

Judicial function in creating common laws Introduction In England, parliament makes the law and judges implement it, this is simply dichotomy in theory. In practice, however, the role of judges may also extend to interpreting law and in some cases the judicial function has seen the creation of common laws. Common laws are the principles and rules that are found in court procedures and judgments1. The dominant source of law is parliament, but English judges also make laws through their decisions in court cases. Parliament makes laws through statutes or delegated legislation through regulations2. Generally, judges cannot challenge the constitutionality of parliament Acts, but can declare certain provisions or the whole act as void and with no effect on the judicial system3. In common law legal systems such as England, previous court decisions and legislation for the bulky of the laws and different levels of courts have an obligation to follow the case precedents. According to Justice McCardie of England, ‘the objectives of common laws by judges is to solve the difficulties and make adjustments to the changing social and commercial scenarios since expanding societies demand changes in laws’4. Traditionally, English judges have followed piece-meal or low-key note law-making in order to avoid criticisms of undemocratic actions. The judicial role in making law was raised in the case of Knulller v DPP (1973) AC 435 when Lord Simon outlined that conversation in Director of Public prosecutions v Shaw indicated that English courts had residual power of creating new offences. The case of C (A Minor) v DPP (1996) AC 1 pointed out some guidelines that judges should follow in judicial law-making. Generally, the judges must be cautious of imposing own remedies and fundamental legal foundations must be considered before making new law. The judge must refrain from making laws on areas where parliament has rejected or has experienced difficulties in legislation. Accordingly, the judicial changes to the law must aim at attaining certainty and finality5. Judges are bound by established court traditions to decide cases along the lines of earlier decisions, but sometimes the case facts may differ thus forcing judges to compare the situations and use common principles in developing new facts that form a case precedent6. A good example of judicial creation of law where the judges face legal situation that lack clear guidance of statute and case precedents is the case of Donoghue v. Stevens (1932) AC 562 where the judges created a new law by establishing a legal relationship matching the consumer’s expectations7. The judges established a new type of tort by establishing that a manufacturer owes a duty of care to a consumer who purchases the products from an intermediary. The existing statutes did not provide for consumer protection and there was no existing contractual relationship between the defendant (manufacturer) and the plaintiff (consumer). Although the tort of breach of duty of care already existed, the case decision extended the existing legal principles due to changes in the society such as purchase of branded and packaged products. The judges did not interpret the existing legal principle, but made a common law that forms the basis of consumer protection and ensures manufacturers meet the consumer product expectations8. Although judges are expected to undertake their judicial role as judges and not arbitrators, English courts have created rules that have lawful force. The eminent judges have sometimes disagreed on the application of legal principles thus forcing the majority of the bench to make a case decision that will form a precedent9. A case example is the Young v. Bristol v. Aeroplane Parts (1944) court of appeal decision where judges held that the Court of Appeal need not follow its own decisions where it is clear that the case was made per incuriam. The House of Lords criticised the practice of deciding a previous case per incuriam in the case of Rookes v. Barnard (1964) through outlining that Court of Appeal could not grant such ‘gratuitous’ advice to a superior court of law10. Lord Dyson asserted that the development of judge-made law is incremental since it responds to new ideas and new events. According to the case of Hedley Byrne Co Ltd v Heller & partners Ltd (1964) AC 465, the judges provided a far reaching extension of law of negligence by establishing the doctrine of negligent misrepresentation11. In this case, a duty of care exists where an advisee seeks information from an advisor who has special knowledge and skills. Another case where judges have interpreted and made laws is the case of R v R (Rape: marital exemption) (1992) 1 AC 599 that held that there no longer a statutory rule that a wife is deemed to consent to sexual intercourse with the husband. The judge made law extended the sexual offences and created a case precedent on marital rape thus forming new English common law12. English legal system allows judges to create common law through their court decisions that become case precedents and enforceable laws of the judicial system. The judges make the case precedents on particular legal principles and facts and courts may be constrained by precedents from previous cases thus forcing the judges to adhere to doctrines of judicial precedents13. According to Lord Lloyd observation in the case of Kleinwort Benson Ltd v Lincoln City Council (1992) 2 AC 349, case law is dynamic and can be changed since decisions of the Court of Appeal can be overruled while parliament can undertake reforms of the law that remove all the judge made common laws14. Conclusion In practice, role of judges extend to interpreting laws and in some cases the judicial function has seen the creation of common laws. Common laws are created by judges in order to address modern problems and situations that require case precedents where statutory codification is not available. Judicial law-making role in English judicial system is evidenced by the common law that has resulted from court decisions and numerous interpretations of parliament statutes. However, the role of judges is strictly to implement and enforce the law without making any changes or issuing other interpretations to the acts. Bibliography: Allen, C.J. The law of evidence in Victorian England. Cambridge: Cambridge University Press. 1997. Barker, David. Law made simple. New York: Routledge. 2014. Bast, Carol and Pyle, Ransford. Foundations of law: cases, commentary and ethics. London: Cengage Learning. 2010. Clarke, Richard. The science of law and lawmaking. New York: Cengage Learning Press. 2005. Green, Ian. The courts. London: UBC Press. 2010. Hallam, Henry. The constitutional history of Engand. London: CUP Press. 2004. Jacqueline Martin. The English legal system, 3rd Ed. London: Hodder & Stoughton. 2002. P 18. Ridges, Edward. Constitutional law of England. New York: Cengage Learning Press. 1997. Shapiro, Martin. Courts: a comparative and political analysis. Chicago: University of Chicago Press. 2007. Wilson, Stephen., Rutherford, Helen and Storey, Tony. English legal system. Oxford: Oxford University Press. 2014. Case laws R v R (Rape: marital exemption) (1992) 1 AC 599. Donoghue v. Stevens (1932) AC 562. Hedley Byrne Co Ltd v Heller & partners Ltd (1964) AC 465. Kleinwort Benson Ltd v Lincoln City Council (1992) 2 AC 349. Young v. Bristol v. Aeroplane Parts (1944). Read More