The function of a judge in any legal system remains a true phenomenon even today. Barristers, solicitors, law students and the general public often question the precise role of a judge – puzzled over whether judges are authoritarian law-makers, or if their profession makes them mere declarers or announcers of the law. Various valid opposing arguments exist in this on-going debate; authors, solicitors, professors, and prominent legal thinkers from earlier centuries have, on many occasions, stated their own views ensuring that either end of the argument is just as plausible as the other. In this essay I will consider a number of examples and cases which suggest that the statement is in fact valid. I will also review a number of specific cases where there is convincing evidence that the statement is incorrect and where new laws have indeed been made by judges.
[...] This idea is reiterated in Professor Diane Birch's article, Better Deal For Vulnerable Witnesses?”[14] where she concisely states that, .along with the complainant's other sexual doings, the remainder of the history of any sexual relationship the complainant has had with the accused will, it seems, have to be concealed from the jury or magistrates.” The belief that judges can only ever ‘declare' the law is also apparent in Section 42 of the Youth Justice and Criminal Evidence Act 1999 where the entire section is dedicated to explaining a precise method of interpreting and applying the rules and guidelines established in Section 41. [...]
[...] A recent case which also supports the statement that, ‘judges do not make law, they only declare is the House of Lords case, R v A (2001), which concerns the rights issued in a statute of the complainant in a rape case. In this case the defendant appealed to the House of Lords declaring his own statement of defense after the complainant took her case to court. He argued that the act of sexual intercourse between himself and the complainant wasn't forced, and rather that it was entirely under her consent. [...]
[...] Dworkin regards judges as the ‘priests of law' they are never capable of creating new law but they can declare ‘fresh applications of ancient rules'.[7] Judges should apply the law that other institutions have made; they should not make law. No matter how ideal this would be, it remains unpracticed due to statutes and the common law ensuring that judges are completely bound. As Lord Scarman states: judge, however wise, creative, and imaginative he may be, is cabin'd, cribb'd, confin'd, bound in not, as was MacBeth, to his ‘saucy doubts and fears' but by the evidence and arguments of the litigants.”[8] This concise metaphor repeats the idea that judges have been given guidelines which relate not only to the rules prevalent in law, but also to the principles and policies that Dworkin believes co-exist and underpin each rule in any legal world. [...]
[...] In the same way, judges have deceived one another for centuries in believing that they merely applied the law created by Parliament they believed that their job was simply to ‘interpret law, and not to make law, or give law.'[21] How wrong this belief has proved to be. In highly debatable and controversial ‘hard cases' this idea could not be further from the truth. Judges have and quite rightly taken the initiative to stipulate new laws and to create new legal reasoning to old and outdated rules. [...]
[...] In such a case, his duty would require him to be not only a mere declarer of the law, but also a creator of a newer, more appropriate and fairer law which will ensure that justice ultimately prevails. 69ABAJ 730 (1983) R v Deputy Industrial Injuries Commissioner ex parte Moore (1965) 1 QB 456,488 (Diplock LJ) ‘Reality, Anthropology and dispute resolution' in W Mansell et al, Critical Introduction To Law'(2nd (Cavendish Publishing Limited: 1999), p29-43 S Guest, ‘Ronald Dworkin' (2nd (Edinburgh University Press:1997) p17 R. [...]
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