My presentation is concerned with the relationship between law/the judiciary and politics. The laws relating to civil and criminal wrongs are indeed made either by Parliament in the form of Acts of Parliament (also called statutes) or by the judges themselves (then called the common law). The common law is made as judges decide cases and state the principles on which they are basing their decisions, this accumulation of principles building into a body of law. I have chosen this topic because this relationship between statutes and the common law is very different in France (like in Germany: this is the Rhineland/Germanic tradition of Law) and in the Anglo-Saxon system. One evidence of that is that in French like in German we have two words for Law: one for what is decided in Parliament this is "la loi" or "das Recht" in French/German and the law made by judges is "le droit", "das Gesetz".
[...] Transition: At one time, it was common for judges to agree with the traditional view and deny that they had any creative function at all or, more precisely and more positively, to assert that, in the development of the common law, all they did was to declare it. Actually, if the judicial function were wholly automatic, the making of decisions in the courts would be of little interest. It is the creative function of judges that makes their job important. [...]
[...] While in certain circumstances and on some specific issues particular judges can be shown, from the record of their discussions, to belong more to the creative or more to the conservative school, it is very doubtful whether either tendency follows from one or other general judicial position. II. The judiciary as a principal organ of a democracy: the Judges as a part of the democratic machinery of administration 1 The British judiciary is much more than just a neutral arbitral force I have said in my first part that, traditionally, impartiality is thought of as part of wide, judicial neutrality. [...]
[...] In the criminal law the judges regard themselves as at least as much concerned as the executive with the preservation of law and order. Whereas under most systems the judgment is formal, brief and to the legal point, the British judge may expatiate on what he is doing and why he is doing it and its consequences and because of his prestige he is listened to. These high powers make the British judiciary more than just a neutral arbitral force. [...]
[...] The judges “make both in the development of the common law and in the interpretation of statutes It must be remembered that in most cases for most of the time the function of the judge is to ascertain the facts. But when questions of law do arise, their determination may be of the greatest importance because of the effect it will have on subsequent cases. Statute law cannot indeed be a perfect instrument. A statute or one section of a statute may be made to deal with some particular subject perhaps with immigration, or drugs, or education but a situation arises where doubt is cast on the meaning of the words of the statute. [...]
[...] In the traditional view, the judge must act like a political, economic and social eunuch In the traditional view, the function of the judiciary is to decide disputes in accordance with the law and with impartiality. The law is thought of as an established body of principles which prescribes rights and duties. Impartiality means not merely an absence of personal bias or prejudice in the judge but also the exclusion of “irrelevant” considerations such as his political or religious views. [...]
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