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The role of judges in making law in Uk courts - Essay Example

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The thesis of this paper is how judges help molding of law through their decisions and help future of course of action by law making body i.e. the parliament. The legal systems of United Kingdom owe their origin to judges who made laws in the course of their decision making…
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Download file to see previous pages This principle of precedent is also known as 'stare decisis'. This precedent should be created by a high ranking court and not from the courts of first instance. They are supposed to follow strictly the already existing law and precedents. Often these courts would be engaged in fact finding since they are not expected to hear full legal arguments of the parties. The courts administration documents and reports the decisions from 1865 in U.K. It is called now Incorporated Council of Law Reporting for England and Wales. It brings out The Weekly Law Reports and The Law Reports. The decisions that are taken as legal precedents shall have 'ratio decidendi' behind them. The ratio decidendi must be related to the law and not on factual findings. It can not also be 'obiter dictum' mentioned as a passing reference while deciding the case and shall have no legal basis for future decisions. The ratio which is binding shall have legal principles and rules considered for finding a solution for the problem in the case. The 'obiter dicta' however are treated as persuasive authority which later judges can use them for arriving at their decisions but are not bound to treat them as precedents.(UK law online)
Precedent has a very important role in the common law. It ensures certainty and consistency and logical progression and development in the law. At the same time it can be rigid and also complex - what is "the law" on a subject may be very difficult to find or to state as it is spread across many cases. So, many countries (especially in Continental Europe) prefer a codified system in which laws are set out in legislation and cases which apply them may be illustrative but do not become binding. The law is also easier to find and to state and is rationally prospective rather than based on the chance event of litigation, which may give rise to laws based on extreme or unusual situations or unevenly argued cases. For example, here is the offence of murder in US Federal Law. By contrast, the law of murder in England is contained in several cases, and even having read them there may be room for doubt. As for English law, the classic definition of murder is considered to be that given by Lord Chief Justice Coke who (writing in the early seventeenth century) said: "Murder is when a man of sound memory and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the King's peace, with malice aforethought, either expressed by the party or implied by law, so as the party wo, or hurt etc. die of the wound or hurt etc .within a year and a day of the same." (UK Law online)
Blackstone stated in eighteenth century that court decisions were mere evidence of common law. (Commentaries pp 88-9) Later Lord Esher said in 1892 that there was no judge made law as such since the judges did not make law but only applied prevailing law not previously applied authoritatively (Willis v Baddeley) However these views are refuted by late professor Cross stating
"a rule stated in a precedent is law properly so called and law because it was made by the judges, not because it originated in common usage, or the judge's idea of justice and public convenience" (Cross R 1991 p 28)
Cross holds that Lord Esher's view that application of existing law to new circumstances actually is similar to statement of ...Download file to see next pagesRead More
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