Page
  1. 1
    1
  2. 2
    2

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

Extracts from this essay...

Introduction

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)

Middle

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 binding, but they may be treated as of "persuasive authority" - later judges are entitled to read them and be influenced by them, but they are not obliged to follow these parts of judicial pronouncements. 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)

Conclusion

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.

The above preview is unformatted text

Found what you're looking for?

  • Start learning 29% faster today
  • Over 150,000 essays available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Over 180,000 student essays
  • Every subject and level covered
  • Thousands of essays marked by teachers
  • Over 180,000 essays
    written by students
  • Annotated by
    experienced teachers
  • Ideas and feedback to write
    your own great essays

Marked by a teacher

This essay has been marked by one of our great teachers. You can read the full teachers notes when you download the essay.

Peer reviewed

This essay has been reviewed by one of our specialist student essay reviewing squad. Read the full review on the essay page.

Peer reviewed

This essay has been reviewed by one of our specialist student essay reviewing squad. Read the full review under the essay preview on this page.