What is the nature of judge-made law?
Judge made law means that judges in interpreting the existing law may need to make a decision where there is no settled precedent and in doing so their decision becomes law. Some may consider that judge made law is against the rule of law because if judges are creating law they are not strictly applying the law. However what the rule of law really demands is that there is no uncontrolled use of power by the individual, groups or government. This means that judge made precedent is consistent with the rule of law because judges are only changing the law in an incremental manner
What is this kind of law that judges are creating? 2 aspects are interesting to note and to be addressed:
– the question whether judges when they render their decisions whether . This question relates to the legitimacy of the judge-made law. Indeed judges aren’t elected so they shouldn’t have any legislative power if we accept the doctrine of the separation of powers.
A) Discovery or creation of the rule of law?
The declaratory theory
If we accept this doctrine we should ask ourselves
The declaratory theory: doctrine in the 19th century. . Another way is to state that
=> The declaratory theory means that the judges discover what the law is that they don’t make it.
Blackstone lived during the 18thcentury, he is famous because he wrote the commentaries of the laws of England in 1766. He was the first to write a treaty on English law,
He is said that “the judge isn’t delegated to pronounce a new law, but to maintain and expound the old one”.
He presupposed that the law exists before it is put into words but this theory explained, justified that judgment law is retrospective.
=> This theory helped in justify that there was .
=> This theory helped to justify that . They just declare what the law was.
DDHC => it’s the idea that judges are declaring and not making the law is the same conception that the revolutionary.
It might seem a little bit hypocrites to say such a thing. There is a creation; it was criticized in the 19th century by in the “childish fiction”. For this kind of jurist, it is obvious that judges are creating law and furthermore it’s a denial of responsibility for judges to deny that they are creating the law. . One of the most several critics comes from the judiciary.
Loid Reid => it’s a fiction.
The fact that judges are creating law is not so disturbing because the area of case law is contract law, tort law and property. These areas of law don’t really affect public interests.
We should remind that in any case statute law may reverse judicial law, . New principle that other rules a judicial decision that means, . These nuances help to accept this declaratory theory and the fact that the judges are making the law.
B) Judge-made law operates retrospectively:
We usually not accept that in statutory law.
When the court declared what the law is there are also in the meantime declaring what it was at the time of the transactions or evens giving rise to the litigations in question. When the judges are saying, this is the rule of law that should be applied in that case, they are saying that this was the rule of law existed.
Provision at the end in the statute to say this statute will be applicable in a certain date, in the absence of such provisions, when the statute enters into force, it was the day of the Royal Assent. This is different of case law applies.
Ex 1: Kleinwort Benson Ltd v Lincoln City Council (1998)
In that case, parties, a financial institution and a local authority.
But in a previous decision, the HL held that when entered into by local authorities .
The solution depended on whether courts will apply that decision to facts that occurred before this decision was rendered. The HL held that the contract was void and so ordered the restitution.
Ex 2: R v R (Rape : Marital Exemption) (1991)
Mister R had been charged with attempting to rape his wife and for his defends he argued on 2 different legal arguments.
English law didn’t recognize the possibility of a man raping his wife and so he couldn’t be an offense to attempt to rape her. He relied on 2 legal principles:
– Sir Matthew Hale’s statement 1736.
– Sexual Offences Act 1976.
He argued 2 things:
He pleaded guilty.
This husband thought that it was lawful but by recognizes it wasn’t, . It’s a problem with some text that a new rule is apply to a fact that it can creates problem with article 7 of European convention of Human Rights (ECHR). . It’s an important principle.
The European Court of Human Rights which considered the case found no problem, no bridge of the convention because the defendant here could reasonably have foreseen that the law would be changed.
Some academics are thought that was where the retrospective effect could be avoiding it.
=> Proposition: . It’s that courts should not necessarily apply the new rule at the state in the case they are considering.
Rétroactivité des revirements de jurisprudence: propositions to try not that the decisions the new rule of law will not be immediately applicable but only in the future. It’s a proposition done in France but not in England.
- English legal system and difference with the civil law
- Distinction between Common law and equity
- Distinction between Common Law and statute law (written law)
- House of Lords, House of Commons and the parliamentary sovereignity
- The legislation : Source of English law
- Statutory interpretation
- Case Law and precedent in the English Legal System
- Stare decisis or the doctrine of binding precedent
- Judge-Made Law
- What is Equity in English Common Law Tradition ?
- Equity in the english legal system
- Custome Law and Soft Law
- Treaties : Ratification and Provisional Application
- Application of european law by English courts
- How does the European court of Human Rights affect the UK?
- Foreign Law in the English Courts : conflict of laws rule
- Lower courts : Magistrate’s courts, Crown court, county court
- High Court : Chancery and Queen’s Bench Division
- Supreme court and Court of appeal
- Lord Chancellor, lord Chief Justice (authorities of the judicial system)
- The independence of the judiciary in England and Wales
- Lawyers in the english legal system : Solicitors and Barristers
- English Law – English legal system