Lawyers and judges playing a creative role is shaping the law
Our view of judges, lawyers and Parliament is dependent on our view of the law. One way the law can be described is by Legal Realism. …show more content…
Thus, there is something uneasy about upholding moral principles society cannot agree upon, especially when this process has no other virtues.
Judges deferring to Parliamentary decisions
However, there is great tension as soon as we change our beliefs on the nature of law and hence, the legal reasoning implemented regarding the extent to which judges shape the law. For example, with positivism – under either Hart or Kelsen – law is separate from morality. Under Hart’s theory, there is some room for judges to apply discretion, as rules have a core of easy meaning and application, and a penumbra of uncertainty. However, for the most part, judges are to apply the clear legal rules which are posited.
If that is our belief, then a positivist may be comfortable with Formalism, as morality and justice considerations are external, and hence should not be applied. Clear rules derived from concepts are the only application of the law judges should perform. However, as Legal realism would note, this has no practical value in reality, as external considerations are always being …show more content…
However, the extent to how active a role a judge takes is contingent on what we conceptualise as the law. These are influenced by our choices in public law, politics, and the functions of institutions. As a consequence, this shapes what constitutes a judicial duty, and hence, corresponds with different roles for the courts in society. If we take the law from a realist perspective, then the role of lawyers is prediction, and judges have a highly persuasive and creative role in shaping the law for socially useful behaviour. Yet, if the law is positivist, then arguably we are more inclined to Faithful Agent theory. This means that judges must concede to the will of Parliament, as they are the best institution for shaping laws in a pluralistic society. However, there is still room for movement, as judges may decide cases to guide behaviour in the penumbra of uncertainty. Consequently, it is possible to balance these extreme perspectives in reality, as institutions must place checks on one another. Ultimately, the extent to which judges and Parliament shape the law changes on where the line is drawn between protecting rights, and what we regard as politically constitutional and requiring state