Should Judges Make Law

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Historically, parliament should make the law and judges simply apply the law, this fits in with the separation of powers theory. Blackstone 's dictation theory also states this. Judges create law by precedent and statutory interpretation.

Under the Literal Rule judges have very little scope for judicial creativity as they are limited to giving words in the Act of Parliament their plain, ordinary, grammatical meaning from a standard English dictionary, this means judges are following the exact words of Parliament. In Fisher v Bell, flick knives were on display in shop windows and the shop owner was charged with ' 'offering them for sale ' '. Technically, displaying them was an invitation to treat, not an offer to sale so they were found not
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Judges may use a different approach in cases with similar facts. Some appear to choose an approach to enable them to reach their own desired outcome. Lord Hailsham said ' 'the trouble with Denning is he 's always remaking the law and we never know where we are ' '. Judges are not elected and both the purposive and mischief rule allow the judge to consider the policy (what will benefit society) behind the statute. It is arguable that as judges are not elected, their role in law making should be limited as policy decisions are based on society and it is more appropriate for an elected body to do this. Lord Esher said ' 'if the words of the act are clear then you must follow them even if they lead to manifest absurdity ' '. Another reason is that it is difficult to know when applying the purposive approach what parliament actually intended. So it is arguable that judges are putting in their own values on what they think parliament intended, especially with old acts. For example, it is difficult to know what members of Parliament were thinking when the Offences Against the Person Act (1861) was passed as it was a long time ago and words in the Act are not used in the same way today. However, since Pepper v Hart, access to Hansard does give them a better …show more content…
It is based on the Latin Maxim Stare Decisis, which means to stand by the decided, but only if the facts before the judges are the same or similar. Precedent is a rigid system as a decision by a higher court in an earlier case, must be followed by a lower court in a later, similar case, so there is no scope for judicial creativity. In order for precedent to later, similar case, so there is no scope for judicial creativity. In order for precedent to operate it is necessary for there to be a court hierarchy. The decisions of the higher court bind lower courts and some of the courts are also bound by their own previous

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