Judges Must Make Law

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Parliament, the supreme law-making body, has an unrestricted legislative power, and the laws it passes cannot be set aside by the courts. The role of judges, in relation to laws enacted by Parliament, is to interpret and apply them, rather than to pass judgment on whether they are good or bad laws. However, evidence has shown that they have a tendency to deviate from their ‘real roles’ and instead formulate laws on their own terms. Thus the real role of a judge in any legal system continues to be a phenomenon questioned by many. We must consider whether they are “authoritarian law-makers, or if their profession makes them mere declarers of the law” . In this essay, I will argue the ways that judges do make law as well as
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However, in Tremain v Pike it was held that the rare disease was not foreseeable and refused the claim; the court held that you cannot foresee a rare disease. Evidently, both the decisions are inconsistent with one another; “The judge consequently had greater freedom of justification in applying the reasonable foresight test than he might otherwise have done” . Thus one may argue that decisions are dependent on judicial styles, as opposed to precedent, which concurs with Hart’s perspective.

One may argue that precedent restrains a judge in making decisions regarding the outcome of a case. In its basic structure it means that any court is bound by the decision of a higher court in the judicial hierarchy provided that the facts of the present case are similar to those of the previous case. Thus, every court is bound by decisions made by the HL, and in their absence, those made by the CA. Wendell Holmes Jnr stated, “the life of the Law has not been logic; it has been experience” . This idea implies judges draw from past decisions in order to determine current cases. However, whilst it can act as a tool for constraint, there are alternatives to following precedent which include distinguishing, overruling, and reversing. Thus judges try to avoid compliance with precedent and employ their own individual discretions.

Distinguishing a case on its facts is
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