Why Do Lawyers And Judges Play A Creative Role In Shaping The Law

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Whether or not lawyers and judges play a creative role in shaping the law depends on the legal reasoning we believe in (Part B) and what our conception of the law is (Part C). This essay will take the position that judges do shape the law, however the extent of which is contingent on our belief of what the law is. Consequently, the type of law we believe in, and how Part C impacts our views on the extent of judges and Parliament’s roles in determining the law will be discussed. The underlying logics of public law will follow, and the tensions they raise.
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.
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Here, judicial decision-making is based on interpretation to extract a moral principle that will fit past decisions and justify them by placing them in the best light. Hence, judges do play an active role is shaping the positive law, to make it more aligned with the underlying moral principles. This is because while the underlying moral principles are immutable, the positive law can change. As Dworkin would note, the law is simply working itself pure, the role a judge takes is to help the law become what it desires to …show more content…
We may have a representative government empowered to do good for society, but this must strike a balance against setting limits on the institutions in power so they do not infringe on our basic rights. For example, if we have bad legislation, do we let the Judiciary serve as a check on Parliament’s power, or do we respect it due to its procedural values? These are the questions that depend on our depictions of the law and the legal reasoning preferred. As if we assume Natural law theory constitutes the law, then the Judiciary prevails in shaping the law. But if we think of judicial duties in terms of Faithful Agent theory, then the Legislature prevails as statutes have procedural values. In reality however, it is not about picking one extreme over the other, (for example, the judiciary always prevails, or that Parliament always prevails), but knowing to balance these competing tensions. Even Dworkin notes, in emergency situations, it might to reasonable to violate some of an individual’s rights if there is an urgent policy consideration competing on similar facts. For example, a man’s right to freedom of speech may be curtailed for the collective welfare of not inconveniencing the public (p.

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