The Judge as a Law Maker - Essay Example

The Judge as a Law Maker Summary The common law consists of the law laid down by judges, through their judgements. Such law is also known as judge made law. In this manner, judges have developed legal principles in areas that have not been addressed in the Acts of Parliament. Judges enact an important role in interpreting the law. The ruling of judges, whilst interpreting the statute constitutes precedents that can be employed in subsequent cases. With regard to areas not encompassed by legislation, judges are seen to continue with developing the common law. On occasion, a dispute could arise between statute and the common law. In such instances, the statute will prevail. In addition, the area of the common law replaced may fail to have a bearing on the interpretation of the novel Act. This relevancy could be explicitly stated in the Act or might lend itself to determination, subsequent to a judicious interpretation of the Act. Introduction The decisions of judges, in general, follow the earlier judgments in cases with similar facts. 1 The common law has been seen to develop on the basis of judgments. This is a continuing process. In addition, it is the task of the judge to interpret legislation, whenever there is a dispute with regard to the meaning or application of an Act. Such interpretations constitute a portion of the common law. Decisions based on precedent are of great significance in the common law. The doctrines established by judges, subsequently transform into legal rules. These rules acquire a binding nature on the subsequent decisions of the courts. Some of these rules find a place in the official texts, such as statutes. However, some doctrinal propositions are not binding, despite their inclusion in the official texts. For example, the decisions of other jurisdictions are not binding on the courts.2 Such non-binding precedents can be found in unofficial texts, like the Restatements, treatises, and law reviews. With regard to an Act that proves to be unconstitutional, the concerned state’s Supreme Court or the High Court of Australia can deem it to be invalid.3 Case Law The courts constitute an important function of government, and this has considerable bearing on judicial method, court organisation and access. In addition, it is essential to strike a balance between providing unqualified justice and conducting the business of the court in an efficient manner. Judges rely on statutes, regulations, precedents, scholarly writing, history, and community values, while taking decisions. 4 Unsettled law cannot prevent the development of judicial interpretation of statutes and the development of the common law. Thus, judges have to take cognisance of legislative policies and the provisions of common law. This can be seen in the development of New Zealand law. 5 For instance, the decision in Wellington City Council v Woolworths New Zealand Limited (No.2) resulted in the enactment of three statutes in New Zealand.6 In Quilter v Attorney-General, the judge stated that it is important to respect human rights and social policy values in order to accommodate same-sex marriages. He also stated that this required the Parliament to enact new legislation.7 In the absence of legislative guidance, judges are forced to consider the values and provisions of the common law. This was evident in several cases. Thus, in Invercargill City Council v Hamlin, the Court of Appeal found that reconsideration of a precedent was necessary. The Court had acknowledged the need to resort to the rules of common law and in the balancing of values under the contemporary law.8 Strict adherence to earlier decisions promotes legal certainty and stability. The departure from precedent could erode respect for the law from individuals. The facts of a case determine whether the courts should depart from earlier decisions. In such cases, the latter will have to shoulder the responsibility for departure from precedent. There is considerable opportunity to appeal to the High Court, and this constitutes a major feature of the Australian legal system. The possibility of making an appeal to the High Court has engendered a uniform common law in Australia. In Lange v Australian Broadcasting Corporation, the situation obtaining with respect to political free speech was made more explicit. 9 The High Court held that the adoption of a constitutional privilege, on the lines of the First Amendment of the US Constitution was alien to the Australian situation.10 Australia enjoyed a uniform common law throughout its jurisdiction. Moreover, in Australia, statute prevails over the common law, where the area of law is the same and the circumstances are similar. It is commonplace for an Act to supplement a domain of the common law. Furthermore, on many occasions, Parliament has implemented an Act that serves to totally supplant some area of the common law.11 Legal systems based on the common law, encompass the law made by judges and statute law. The civil law legal systems are based on legislation, whereas, the legislature and judgements constitute the basis of the legal doctrines of the common law systems.12 Judges are required to apply the provisions of the law. If there is no relevant legal provision, then the judge is required to decide on the basis of the extant customary law.13 Some experts argue that the manner in which judges make the law is different from the process adopted by the government or politicians. However, judicial law-making can be linked to the development of the common law. All the same such law-making cannot be applied to the interpretation of the constitution.14 There are certain important factors that influence the judicial policy. These include the concept of precedent and analogy of cases. Moreover, these factors create restricted discretion to the judges. The development of law requires consistency, coherence, and continuity. Judicial law-making, per se, is principled and well-reasoned. These aspects are conspicuous by their absence in political law-making. On the other hand, politicians are not bound to deal with the problems generated by their decisions. Another important distinction is that the courts only deal with the cases before them, and they do not take any initiative to decide issues on their own. They require litigation to decide on issues. In Australia, the federal courts enjoy restricted freedom to deliver advisory opinions, and the High Court is the supreme legal authority that exercises control over cases.15 In addition, it can initiate special leave process to hear cases. As such, the High court is the highest authority in the judicial hierarchy. Moreover, in Australia, the Mason Court has been considered to be the promoter of Australian legal thinking and judicial techniques. It provided new approaches to the Australian courts, in the task of developing judicial law-making. The law making role of the courts has certain limitations. Moreover, there are several differences in the law-making process of the courts and the parliament.16 For instance, judges have to study the effectiveness of the judicial techniques employed in the law-making function. Judges have to play an active role in employing the techniques of the law-making process. The process by which the courts conduct the process of law – making has to take into account the tendency of the judges to consider the values and perceptions in the community, as the basis for effecting change in the law. Moreover, the courts have to ensure that material of greater relevancy is submitted to them. Some of the issues that necessitate a change in judge made law are altered political, social and economic conditions. Conclusion An important feature of legislation is that it proves unequal to the task of providing for each and every eventuality. Consequently, the court may be required to interpret the statute, in accordance with the facts of the case before it. The law relating to such specific circumstances will therefore constitute a combination of the Act and the decision taken by the court. Thus, statute law and judge made law, come together to solve problems under specific circumstances. Any judgment must fall within the scope of the existing legal order. Furthermore, judges have to make judgments that can be followed subsequently. As such, they have to ensure justice for the parties and maintain the balance for future cases. Therefore, a decision must be principled and coherent, and it should be capable of developing the law in a consistent manner. On occasion, ambiguity may plague an Act or there may be no explicit law to deal with a particular situation. Under these circumstances, judge made law comes to the rescue by resolving the issue on hand. The courts have to pay closer attention to the interests of the parties in a case, in order to resolve the dispute between them. On the other hand political decision making does not involve such close attention to the needs or interests of individuals, as it is concerned with the interests of the general public. Moreover, judges have to take into account the public interest or reasons behind arriving at the decision in a case. Judge made law is characterised by logical decision making, which takes into account the public interest. Bibliography 1. Articles/ Books/ Reports Humphrey, Mark L, ‘Should Common Law doctrines dynamically guide the interpretations of statutes?’ (2009), 3(2) Legispurdence: International Journal for the Study of Legislation 171. Lindell, Geoffrey, ‘Judge & Co.’: Judicial Law-Making and the Mason Court’, (1998) 5(1) Agenda 83. Wagenheim, Georg Von, ‘The evolution of judge-made law’, (1993) 13(4) International Review of Law and Economics 381. 2. Case Law Invercargill City Council v Hamlin (1994) 3 NZLR 513 (CA). Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Quilter v Attorney – General (1998) 1 NZLR 523 (CA). Wellington City Council v Woolworths New Zealand Limited (No.2) (1996) 2NZLR 537 (CA). 3. Other Sources Elias, Sian, Reflections on appellate leadership < http://www.austlii.edu.au/au/journals/VUWLRev/2002/47.html> at 2 April 2011. How laws are made at 1 April 2011. Leeming, Mark, Common law within three federations (2007) at 1 April 2011. Legal Services Commission, Sources of Law (2007) at 1 April 2011. Muston, Lynda, Rice, Simon and Quinn, Jill, About the legal system at 9 April 2011. Ross, Mary Massaron, The development of the common law on appeal (2010) at 1 April 2011. Read More