Cavendish Publisher Ltd Essay Example

Cavendish Publisher Ltd Essay Example Cavendish Publisher Ltd Essay Cavendish Publisher Ltd Essay The old view of the judges role, the so-called declaratory theory of law, was that they were merely declaring the existing law. Lord Esher stated in Willis v Baddeley26: There is no such thing as judge-made law, the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable. The modern view is that judges do make law. Lord Radcliffe said: there was never a more sterile controversy than that upon the question whether a judge makes law. Of course he does. How can he help it? 27 The reality is that judges are continually applying the existing rules to new fact situations and thus creating new laws. Law must adapt to changing circumstances and Parliament can be slow28. Therefore, from any disadvantage you could always derive some positive elements. The making of law in decided cases offers opportunities for growth and legal development, which could not be provided by Parliament. The courts can more quickly lay down new principles, as the judges from time to time have to deal with cases of first impression or extend old principles, to meet novel circumstances. If a new event that has not been decided before comes to the court (original precedent), it is likely that the judge will look at cases which are close in principle and decide to use similar rules. This idea of creating new law by analogy can be seen in Hunter v Canary Wharf29. The interference with the reception on Hunters television because of Canary Wharf Tower having been built was likened to the case of Bland v Molselely30, in respect to the loss of a view. There has built up over the centuries a large quantity of cases that illustrate a vast number of the principles of English law. The cases exemplify the law in the sort of detail that could not be achieved in a long code of the Continental type. However, therein lies another weakness of case law. Its very bulk and complexity make it increasingly difficult to find the law31. Moreover, the advantage of certainty is diminished, as there are too many cases that seem really confusing. It is fair to say that judicial precedent has considerable significance within the laws of England, however it is important to see whether the significance is justified, and whether it is current position is adequate. Consistency plays a central role in justifying the decisions taken in particular case. Some believe that treating two cases in the same way can lead to the law being inflexible and rigid and a lack of freedom is formed. This to a certain extent is true but I feel that if two cases are very alike with just material facts being different, then they should be treated in the same way. This leads to fairness and certainty as mentioned previously. However, there are a lot of factors, which make it difficult to achieve consistency, as statements of law on a legal issue are usually made by more than one judge and a single judge make several stamens of law32. Practically any legal system has official hierarchies of decision-making, where superior courts have the power to resolve inconsistent statements of lower court judges. Therefore, there is a degree of inconsistency where the decisions delivered by different judges on certain points of law. In any cases, the rules of precedent do not explain why judges obey the rules of precedent. Neither do they indicate the degree of consistency that is likely to be precedent at any given time33. On the whole the advantages are outweigh the disadvantages and it the best system we have at the moment and still remains highly significant in English legal system. The Practice Direction of 1966 allows the Highest Court in the hierarchy to reverse previous decisions that helps to ensure that old and out dated rules can no longer apply to modern society. Due to the increase of case law the importance of judicial precedent will increase, as it will cover nearly every legal situation. It cannot be achieved by any codified legal system. Even though a part of British constitution has now been codified in statutes it only brings advantages. It can be referred to and it will be easy to see when someone breaches these rights. Before the Human Rights Act was made, citizens had nothing to back them up when they felt their rights as a citizen had been infringed apart from taking the case to the European Court in Strasbourg. Now, there are many different cases that allow citizens to do things they were never previously lawfully allowed to do. The Human Rights law is now entrenched in the UK Judicial system, and so it will be much more difficult to repeal an entrenched Act of Rights when there is a breach of basic human rights. It will be actionable directly in the UK courts. Word count: 3,905 1 Penny Darbyshire, English Legal System, 5th edn, Sweet Maxwell, p. 22 2 Gary Slapper David Kelly, The English Legal System, 6th edn. , Cavendish Publisher Ltd. , pp. 68, 89 3 J. Stone, The Ratio of the Ratio Decidendi, 22 Modern Law Review,1959, pp. 597-8