Do judges make law? The legal systems within the United Kingdom were based largely on judge-made law (

Do judges make law?

The legal systems within the United Kingdom were based largely on judge-made law (law developed through decisions by judges necessary to decide cases brought before them - called "common law" or case-law) until around the seventeenth century. Each jurisdiction developed its own forms of common law, with Scotland being especially distinct from the rest. Since that time, new laws and law reform have increasingly been brought about through Acts of Parliament, usually inspired by policies of the Government of the day. Even so, the development of case-law still remains an important source of law. A statement of law made by a judge in a case can become binding on later judges and can in this way become the law for everyone to follow. Whether or not a particular pronouncement (technically called a precedent) by a judge sitting in court when deciding a case does become binding (according to the doctrine of "stare decisis" - stand by what has previously been decided) on later judges depends on two main factors:

The pronouncement must be made by a court of sufficient seniority. Basically, judges at the lowest tiers of decision making (often called courts of first instance), are not allowed to issue binding precedents. Often, the cases are not fully reported anyway, so it is not clear what has been decided. In addition, these judges may not be hearing full legal arguments but are concentrating on factual findings. So, it is the higher courts which issue binding rulings and the lower courts must follow them.In these courts there has been a system of official recording and reporting since 1865 (now called the Incorporated Council of Law Reporting for England and Wales, which produces ). There are also many commercial law reports, though most again are confined to decisions of higher courts (such as the All England Law Reports). Here is an expalantion of some case citations you might come across - Lamb [1967] 2 QB 981 (this means a case reported in the Law Reports); Thabo Meli v The Queen [1954] 1 WLR 228 (this means a case reported in the Weekly Law reports); Thornton [1992] 1 All ER 339 (this means a case reported in the All England Law Reports).

The pronouncement must have formed the ratio decidendi of the case (this is Latin for the reasoning behind the decision). The reasoning must be a matter pertaining to the law rather than a factual decision. In addition, the pronouncement must not be obiter dictum - something said either about the law or the facts of the case which is "by the way", in other words, not strictly necessary for the legal basis for the decisions. Only the ratio decidendi will be binding. It will comprise the legal principles and rules which are necessary to solve the problem before the court. Obiter dicta are not ...

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We can summarise these rules -as the doctrine of precedent (or, to use lawyers’ language, the doctrine of stare decisis). A later judge will have to determine (i) what pronouncements from earlier decisions are binding and (ii) whether any is relevant - the later judge may say that the case before the court is "distinguishable" from the earlier case (i.e. has materially different facts so as to fall within different areas of law). Precedent has a very important role in the common law. It ensures certainty and consistency and logical progression and development in the law. At the same time it can be rigid and also complex - what is "the law" on a subject may be very difficult to find or to state as it is spread across many cases. So, many countries (especially in Continental Europe) prefer a codified system in which laws are set out in legislation and cases which apply them may be illustrative but do not become binding. The law is also easier to find and to state and is rationally prospective rather than based on the chance event of litigation, which may give rise to laws based on extreme or unusual situations or unevenly argued cases. In English law, the classic definition of murder is considered to be that given by Lord Chief Justice Coke who (writing in the early seventeenth century) said:

"Murder is when a man of sound memoryand of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the King's peace, with malice aforthought , either expressed by the party or implied by law, so as the party wo, or hurt etc. die of the wound or hurt etc.within a year and a day of the same."

Legislation has become the commonest source of new laws or of law reform since around the Seventeenth century. So when we think of laws in modern times, we often think of sections in an Act of Parliament. Statutes can be applied to all or any combination of jurisdictions within the United Kingdom, whereas the common law jurisdictions are more limited. Acts of Parliament which apply to everyone throughout one or more jurisdictions are called public general Acts. But Acts may also be limited to geographical locations within a jurisdiction (e.g. the W est Yorkshire Act 1980 and local bye-laws) or to specific persons or companies.

Reasons for the use of delegated legislation are as follows:

to save time in Parliament - the time taken to scrutinize statutory instruments is often zero or, at most, an hour or two;
to allow for expert input into their design and technical language to be used in their wording
to allow flexibility in responding to events and representations

There are also powers under the Local Government Act 1972 for local authorities to issue delegated legislation - these are called bye-laws.