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Separation of Power

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Under the theory of separation of power, Parliament makes UK law while the role of judges is to apply the law to the cases. However, in reality, do judges make/develop the law? Like Lord Radcliffe said in 1968 "there was never a more sterile controversy than upon the question whether a judge makes law. Of course, he does. How can he help it?" Judges in the UK do develop the law through both the operation of the doctrine of judicial precedent and statutory interpretation. In precedent, judges were thought to not make new law. However, it is now recognised that they do use precedent to create new law or extent old principles in various areas. In criminal law, judges have played a major role in developing the law on intention (Vickers 1957 - intention for murder includes intention to cause GBH, later was confirmed in Cunningham 1982; or Moloney 1985, Nedrick 1986 and Woolin 1998 and the law on foresight of consequences in relation with intention). Judicial decisions have also effectively created new crime as in Shaw v. DPP (1962) - offence of conspiracy to corrupt public morals, or R v. ...read more.


overruled Havana Railways (1960)). From Young case (1944), Court of Appeal (CoA) can overrule its own previous decisions and most other courts are also not bound by their own previous decisions. Since the precedent refers to the legal principle based on material facts (ratio decidende), all judges can use distinguishing. This means if the judge finds a material fact that is sufficiently different to draw a distinction from the previous cases, he is not bound by those cases. It has been used in the law on duress (Shephred 1987 was distinguished from Sharp 1987) or in intention to create legal relations in contract law (Merrit v. Merrit 1971 and Balfour v. Balfour). Distinguishing is often used in tort cases. Read v. J Lyons & Co. (1977) was distinguished from Rylands v. Fletcher (1868) in that nothing escaped from the land and Evans v. Triplex Safety Glass Co Ltd (1938) from Donoughue v. Stevenson (1932) as there was other potential causes of the failure of the product. In statutory interpretation, judges are asked to decide the precise meaning of words in an Act of Parliament. Some follow the literal rule which states that the words should be given their plain, ordinary, grammatical meaning as in Oxford Dictionaries. ...read more.


The rules have allowed judges for flexibility to decide the cases but they are often criticised as giving too much freedom to change the law to suit policy consideration e.g. R v. O' Grady (1987). Although judicial creativity allows judges to respond immediately to the problems before them (R v. Children 2000) which might take years for Parliament to make new law, or helps to develop the law to catch up with technology development (intellectual properties law) or protects the individual (R v. R 1991), since judges are not democratically elected by public, their roles should just be to apply the law (Bellinger v. Bellinger 2001). Another problem with judges involving in making law is that the decisions are given in a short time period and they do not involve in the lengthy debates/consultation by the Parliament. Thus, they may not make rules appropriate to all situations (Morgan v. Launchbury 1972). More importantly, judicial creativity appears to be lack of consistency. Judges can overrule or reverse the previous decisions (Pepper v. Hart (1993) reversed Davis v Johnson (1974) on the use of hansard.) Whether judges should make law or not, they inevitably do. However, generally their decisions help to develop the law correctly and they do respect the sovereignty of Parliament and are content to leave the policy matters to the elected legislature. ...read more.

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