Do Judges Make Laws?

In the Tinker vs. Des Moines court case the judges decided for Tinker even though both arguments from the lawyers where not well made. The judge’s decision was made by who they thought they should go for even though both sides had bad arguments and made a bigger deal of this case than what it should really be.

It is often believed that the relationship between certainty and flexibility in judicial precedent has struck a fine line between being necessary and being precarious. The problem is that these two concepts of judicial precedent are seen as working against each other and not in tandem. There is proof, however, that as contrasting as they are on the surface they are actually working together to achieve one common goal.

The Judicial review of laws passed could prevent a bill being passed if it is thought to be against the legislature of the United Kingdom. For example a trade union taking Government to court over trade union laws.

The current approach by the legal system seems to be that the law should maintain a common morality, based on traditional, ‘common-good’ values, as embraced by Devlin . This might flow from criticism against the liberalizing values of the Wolfenden report. Cases like Shaw v DPP and Knuller v DPP made use of the offence of conspiracy to corrupt public morals (previously not been applied since the 19th century) and beckoned that the law would conceive to uphold society’s ‘moral values’ consistent with Devlin’s school of thought. This approach has continious, as the recent case of R v Brown (1994) illustrates. The defendants had voluntarily consented to varied sado-masochistic practices, and none of them complained to the police. Nevertheless, they were prosecuted, and both the House of Lords and also the European Court of Human Rights, supported public policy to defend the morality of society, upheld their convictions. The law is therefore seen to attempt to uphold what it considers to be public morality, even though

In legal models, the judge makes a decision based on facts and laws without considering how the decision may impact public policies. They may also utilize previous cases that have similarities to the current case in order to make a decision. This is useful because they may interpret the Constitution from different points of views of other justices or judges which had to make a decision on a past similar case (Video Engager). The only downside to this model is the fact that judges make decisions without

While I accept that theoretically a judge should not consider extralegal factors when making a ruling, I cannot accept your premise that all judges rule as neutral arbiters who rely solely on precedent, Constitutional text, and original intent of the Framers. As with any other individual in public service, judges are still human beings, and thus bring with them their own prejudices, personal biases, and preconceived notions when taking the bench.

It was, therefore, seen as a breach of judicial independence. However following the creation of the Supreme Court in 2009, senior judges no longer sit in the House of Lords which means are free of political influence and decision making – and in effect – from the legislature as they can speak out against the government.

xiii) Influence of EU ensures that altering UK constitution is hard – cannot be incompatible

Judicial precedent refers to the sources of law where past decisions made by judges create law for future judges to follow. An example would be the Donoghue vs Stevenson case, where Stevenson had bought ginger beer, and Donoghue had drank it after their been a decomposed snail in it, however their was no charge because she was not in a contract with

Court decision rules and help make the outcome of case law. The important of case law is it can be interprets with statues, regulation, constitutional provisions and other case law. (Miller, 2017). Judges decisions which are made in previous cases can make a case law. Case laws decisions can come from civil lawsuit, state court, local court and federal court. For example, if I had file a civil lawsuit against someone about an incident and win the case. A few years later, somebody else has a similar incident, but loses their case. The court the court must use the previous court’s decision in applying the law.

Although these issues were not disputed, the significance of the House of Lords' judgment corresponds elegantly with the rising willingness of some judges to see their role, where essential, as a constitutional court.

Time-saving. Where principles have been established, cases with familiar facts are unlikely to go through a lengthy process of litigation. The main disadvantages of the doctrine of judicial precedent are; -

In Li CJ’s judgment in A Solicitor v Law Society of Hong Kong [2008] 2 HKC 1, he commented in paragraph 9 that the “rigid and inflexible adherence by this Court to the previous precedents may unduly inhibit the proper development of the law and may cause injustice in individual cases. The great strength of the common law lies in its capacity to develop to meet the changing needs and circumstances of the society in which it functions.” In this essay, this statement would be discussed with reference to the role of the courts and their relationship to the legislature.

Difference between the legislated law, codified and the common law is that while the legislated law may be subject to interpretation by the judiciary, the judiciary cannot make laws or modify the codes. In a constitution that has strict severance between the legislature and the judiciary, judiciary upholds the constitution and strikes down legislation as unconstitutional. It cannot however modify or substitute the laws. Judge made laws are more volatile and based on the changing times. That is why the common law is versatile because the judge made laws found in the latest precedents indicate the path that the law is now following. It is also easy to overrule mistakes, and the general jurisprudence is based on the thinking current rather than rigid legislation that requires a process alien to courts. It is the contributions of jurists that created the common law. It was in England that Lester commended that 'British Judges remain lions firmly before the throne of the crown and parliament'. This was proved true with the decision in M.V Home Office which shattered the immunity of the crown from injunctions of the court. (Allison, 2000, p.

The judges in the lower courts are bound to follow previous decision of the higher courts. It is an essential component of the common law as it is important of adequate law reporting. It is a decision of the court used as a source for future decision-making.