The judge as law maker 1972 12 jsptl 22

But we do not believe in fairy tales any more. If it is not and the judge goes wrong the Court of Appeal can set him right. This case remains a very good example in the way the practice statement allowed the law to change in accordance with society. Therefore, Mrs Berriman claim failed, due to this harsh approach.

Founder of Phull Legal Recruitment Limited: Page 90 [8] AC HL. Nine-tenths of the time of a judge at first instance is taken up with getting at the facts-keeping control of the proceedings, watching the witnesses and evaluating the evidence.

It is clearly simple to point out the difference between the cases. The Oxford English Dictionary makes use of the literal approach, accessing previous acts of parliament.

The jurist may ask what I mean by law…. This theory portrays that judges do not in any circumstances create law, but decide the outcome of a case in accordance with existing legal principals set out by earlier precedents, therefore judges are bound to apply the law which is governed in those particular cases.

This statement allowed the House of Lords to depart from their own previous decisions. The judge has to show and prove good reason as to why they do not want to follow the previous decision. This theory is seen to be very old — fashioned and though case law the theory can be disproved e.

Precedent has always been a controversial area with judges, in that the declaratory theory states that judges only apply the law and parliament create the law. The decision was to overrule, Addie using the practice statement, held that British railway was aware of the environment and damages to the fence, and were held liable [12] In Anderton v Ryan [] [13]the House of Lords explained that this case was an exception because an error was found which distorted the English Law.

Meanings of words can ultimately change depending on their context; therefore judges must use their experience and skill to make the best of sometimes- imperfect law to ensure a fair and just outcome to the case.

So we must accept the fact that for better or for worse judges do make law, and tackle the question how do they approach their task and how should they approach it.

The traditional view of the English Judge is to apply and enforce the law as dictated by Parliament. More often than not once the facts are determined the law is clear. Overruling is where a court in a later case state the legal principal decided in an earlier case was wrong [5].

Bad decisions are given when the judge has muddled the pass word and the wrong door opens. The Purposive Approach extended the mischief rule, in that the courts are not seeking to see what the gaps were in the old law but to decide what parliament meant when the statue was passed. It was held that there was no liability towards the child, and this probably reflected the view of society inthat the safety of the child was the responsibility, meaning British railway had to provide a safe environment.

There was a time when it was thought almost indecent to suggest that judges make law-they only declare it. Authority comes from the case R v R Rape: The Literal Rule is where the judge is required to interpret the statue, to bring about its literal ordinary, natural and everyday meaning to the words in the statue.

A good example is in the case of Boardman v Sanderson [] [3].

Do Judges Create law?

There is vast evidence to suggest that judges can use any three rules of interpretation they so wish also, they can ultimately decide the outcome of the case by choosing a specific rule and putting their own personal views into the case to bring the desired outcome they wished for.

The clear advantage of the literal rule is that judges are not imposing there personal views onto the statue, they are therefore leaving the parliament to create new law.

In having avoided the previous decision, the judge is able to develop the law, rather than being bound by precedent in a number of situations.

Published in Hodder Arnold.

If Judges are basing their judgments on old-fashioned precedents, the legal system has no chance to develop. The reason for this is our legal system can evolve, develop and cater for peoples needs in the 21st Century.

Page 5, 6, 62,63 and Common Law is referred to as judge made law, which has developed over centuries. Common law that is present in our Modern English Legal System has to be changed.

The reason for this is our legal system can evolve, develop and cater for.


"The Judge As Law Maker 12 Jsptl 22" Essays and Research Papers The Judge As Law Maker 12 Jsptl 22 University of London Common Law Reasoning Institutions Essay Title: “There can be no real argument about it: judges make law.

'The Judge as Lawmaker', () The Journal of Public Teachers ofhw Lord Radcliffe, 'The Lawyer and his Times', Not in Feather Beds (London: Hamish Ham- ilton, ), Nevertheless Lord Reid suggested that we are perhaps too much inclined to blame the draftsman and that sometimes he receives inadequate instructions from the department promoting the legislation.

23 23 Lord Reid, ‘The Judge as Law Maker’ () 12 JSPTL Apr 11,  · The citation for the original is Journal of the Society of Public Teachers of Law (New Series), Vol. 12, Issue 1 (January ), pp. [Edited and formatted for ease of reading.] Advertisements. 22 SOCIETY OF PUBLIC TEACHERS OF LAW THE JUDGE AS LAW MAKER By LoRD REID am very glad to have this opportunity of meeting and exchanging views with those of you who belong to a sister branch of our profes- sion.

Judges make law: Lord Reid: The Judge as Lawmaker

It is, I suppose, inevitable that opportunities for interchange should be few. The next best thing is to meet as often as .

The judge as law maker 1972 12 jsptl 22
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