Criticism of Judge-Made Law - Essay Example

Name: Instructor: Course: Date: Judge-made Law Introduction According to the statement provided, judicial precedent or judge-made law lacks democratic legitimacy. This arises from the fact that the law-making power is given to Parliament and not the Judiciary. The Judiciary interprets and applies the law. This means that every time the judges make law, they act beyond the power given to them. It is on this basis that judge-made law is considered as lacking legitimacy. This essay will discuss this criticism of judge-made law and ultimately show that judge-made law is necessary and legitimate. The law-making powerof Parliament The UK Parliament has the power to make law that it wishes to pass. However, no Parliament has the power to bind later Parliaments in a way that limits the power to make law. This concept arises from the principle of Parliamentary sovereignty. Laws made by Parliament are referred to as legislation and can either take the form of an Act of Parliament or a delegated legislation. The UK Parliament has two Houses.A Bill must, therefore, pass through both Houses and then gain the Royal Assent for it to become law. It is after the Royal Assent that a Bill becomes lawthat the Courts must enforce. Once a delegated legislation has been passed, it attains the same status as a statute and hence is superior to judicial precedents.1 The role of the court and the criticism of judge-made law Judges cannot determine the validity of statutes but ratherare compelled to apply them. In British Railways Board v Pickin,2 the House of Lords held that a claim of the invalidity of a statute cannot be raised in any court. The courts do not have the power to declare a statute void. They are required to apply the law as it is. Even in the case of delegated legislation, a court can only such a law void where the legislation tries to exercise powers beyond those conferred by the Act of Parliament authorizing the delegated legislation to be made.3 The people elect Members of Parliament to represent them and make laws that reflect their interests. In a democracy, the people, through their representatives, are responsible for making the law. The role of the judges is, therefore, to apply the law made by Parliament.4 On this basis, judge-made law is contrary to the law-making process under Common Lawsince the judges make law and proceed to apply it. The fact that this kind of authority is placed on unelected officers makes it undemocratic. The judges are unelected and hence are not answerable to the people they represent or govern. Another criticism stems from the fact that there is a great number of judges from the High Court to the Supreme Court Justices. Every sentence of the judgments made by the judges might have a precedent. It becomes impossible for anyone to be conversant with all the precedents. Bad decisions forming precedents can live for a long time. This means that where a bad decision forms part of precedent, there will be injustice to the litigants due to the application of the precedent. Response to the criticism on judge-made law The argument raised in the statement provided is that judicial precedent should not be considered as a source of law since such law does not have democratic legitimacy.Democratic legitimacy, in this case, refers to the role of the people to choose the representatives who make law and are accountable to them. The argument that judge-made law is not democratic may be true to some extent, but that does not make this source of law illegitimate. There are characteristics that judge-made law shares with the democratic law. The process by which judge-made law is made imitates the process undertaken by Parliament in making law.5Judicial precedents are based on the views of those people that are subject to the law. Parties in a case before the court will argue out their interpretations on a particular law and how it should apply to the case at hand. The decision of the court is based on the arguments put forward by the litigants. The court gives a justification of the outcome by showing how precedent applies in that particular case. The deliberative process in Parliament and the involvement of the people in making law makes enacted law legitimate. This means that the fact that the parties in a particular case deliberate and the court makes a decision based on the arguments of the parties also makes the judge-made law legitimate. Judge-made law is highly participatory since the litigants appear on their behalf or with the help of counsel, and present their arguments as to how the law should apply. The litigants also have the opportunity to appeal whenever the decision of the court is contrary to their interpretation of the law. This makes the courts responsive to the needs of those that are bound by its decisions, which is the hallmark of democratic legitimacy.6 Further, the fact that judicial precedents are constantly revised ensures that the law is responsive to the circumstances of the people who are bound by it. Judicial precedents are constantly revised whenever there are changes in the policies or customs in the society. The judges change the law to reflect the changing interests of the people.7In the UK, for example, the Supreme Court, which is the highest Court in the land, has the power to make and change an existing precedent. In contrast, the law enacted by Parliament is not always responsive to the changing circumstances of the governed. Sometimes statutory law continues to apply beyond the scope that was imagined by the authors of the law. Judicial precedents have certain advantages. The system where the judges can distinguish a case helps to reduce the rigidity of this source of law. This means that a judge in a lower court can refuse to apply a precedent based on the fact that the facts of the case at hand are materially different from the facts of the case that binds the court. This concept allows judges to escape applying precedents considered as inappropriate to the case before the Court.8 Judicial precedents also cause decisions that are of high quality to be applied in all courts. Judges in the higher Courts have the experience and the time to make good decisions that can be applied by the lower courts that are usually much busier. Justification for Judicial law-making In London Tramways v London CountyCouncil,9 the Court held that judges have a duty to apply the law. Further, the Court held that the decisions made judges in the Higher Courts are binding on all other Courts.To discharge their responsibility, the judges may extend the application of the law to new cases, make new conclusions from settled precedents and apply the law to circumstances that may have been unforeseen during the enactment of the law. This means that the role of the judges in making law is not meant to undermine the legislature but rather to ensure that justice is administered to the litigants. The judges may extend the law to apply to a new case whose circumstances may not have been captured during the making of the law by the members of Parliament.10 There are four situations where the need arises for judicial law-making. This is where the judge has to make law to ensure that justice is administered to the litigants. First, a judge may make law where the interests in a certain case are covered by existing law but the court disagrees with the provision on policy grounds.11This is where, though the law provides for the circumstances of the case in question, the court is of the opinion that applying the law as it is would be unjust to the plaintiff. An example is the decision of the High Court in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] where the Court modified the doctrine of privity of contract to allow a third party to successfully claim for enforcement of an insurance contract. The court was of the view that to apply the doctrine of privity of contract strictly would be unjust to the third party. In this case, though the court acknowledged that the doctrine applies, it disagreed on the application of the doctrine in this particular case because it would hinder the administration of justice. Secondly, the circumstances of the case may be covered under the existing law but the political and social ideas have changed.12In this case, judges may make law where, though the interests being protected in a certain case are recognized by existing law, the social and ethical factors about the accommodation of such interests has changed. The third situation is where the interests recognized by existing law are similar to the interests of the case before the court.13 Such a situation requires the court to make law to apply in the case at hand to ensure that the litigant gets justice. The court will, therefore, extend the application of the existing law to apply to the situation in the case. Lastly, the court may make law where the interests before the court cannot be fairly considered to be similar to the ones recognized by existing law.14 However, the spirit of the law in question allows the interest in the case to be accommodated. The principles outlined represent the situations where the court makes law to ensure that justice is administered. These situations represent the circumstances where a need arises for the court to depart from the law made by Parliament and make a new law.15 Judicial law-making is different in nature from the legislative enactment of law. Law making by the courts occurs in different circumstances and is a response to different stimuli as compared to legislative enactment of laws. The making of law by judges should not be seen as overstepping into the role of the legislature but rather should be looked at from a complementary point of view. The making of law by the judges is limited to the determination of a legal dispute. This means that the Court cannot make law in the absence of a legal dispute instituted by the parties. Judges make law only when the changes in the society call for the change in the law to reflect the new changes. Changing social conditions are, therefore, a key determinant of the power of the judges to make law.16 Conclusion The English Legal System exclusively reserves the power to make law for the legislature. Parliament, therefore, has the power to make law while the role of the Courts is to apply the law. Judge-made law has been considered as lacking legitimacy. However, judicial precedents should be looked at as complementing existing statutes. The courts have the responsibility to administer justice through applying the law. In doing so, the court may make law in the process of discharging its mandate. Such law is responsive to the needs of the society and, therefore, should be considered as legitimate. References The Australian Bar Association 1998,Democracy and the law, Available at: http://www.hcourt.gov.au/assets/publications/speeches/formerjustices/mchughj/mchughj_london1.htm [Accessed 26 October 2015] Steilen, M 2011, The democratic Common Law, TheJournal Jurisprudence, 437. Thayer, E 2012, Judicial legislation: its legitimate function in the development of the common law, Harvard Law Review, 172-201. Sauveplanne J 2014, Codified and judge-made law: The role of Courts and Legislators in civil and common law systems, North Holland Publishing Company. Wangenheim, G 1993, The evolution of judge-made law, International Review of Law and Economics 13(4), 381-411. MacIntyre, E. 2014,Business Law(7th Ed.), Pearson Education. Read More