Judges Flashcards
Dworkin: a seamless web of principles
Ronald Dworkin also accepts that the judges have no real discretion in making case law, but he bases this view on his concept that law is a seamless web of principles.
Critical theorists: precedent as legitimation
Critical theorists argue that judicial decisions are actually influenced by social, political and personal factors and that the doctrine of judicial precedent is merely used to legitimate the judges’ decisions.
Griffith: political choices
Griffith also thinks that judges are influenced by their personal background.
Waldron: political choices, but why not?
Waldron
accepts that judges make political choices but sees no fundamental problem with this.
Do judges make law?
There is no doubt that on occasion judges make law. There is some debate as to when
judges ought to make law. When judges make law they can adapt it to social change.In the first place, historically, a great deal of our law is and always has been case law,
made by judicial decisions. Contract and tort law are still largely judge-made, and many
of the most important developments – for example, the development of negligence as a
tort – have had profound effects.
Do judges make law? part 2
This was the case in Airedale NHS Trust v
Bland (1993), where the House of Lords considered the fate of Tony Bland, the football
supporter left in a coma after the Hillsborough stadium disaster.Several Law Lords made it plain that they felt that cases raising ‘wholly new moral and social issues’ should be decided by Parliament.Nevertheless, the court had no option but to make a decision one way or the other, and the judges decided the action was lawful in the circumstances, because it was in the patient’s best interests.
Do judges make law? part 3
They also control the operation of case law without reference to Parliament: an obvious
example is that the 1966 Practice Direction announcing that the House of Lords would
no longer be bound by its own decisions, which made case law more flexible and thereby
gave the judges more power, was made on the court’s own authority, without needing
permission from Parliament.
Do judges make law? part 4
is DPP v Jones (1999), which concerned a demonstration on the road near Stonehenge. In that case the Lords looked at another long-held
rule, that the public have a right to use the highway for ‘passing and repassing’ (in other
words, walking along the road), and for uses which are related to that, but that there is
no right to use the highway in other ways, such as demonstrating or picketing. In Jones,
the House of Lords stated that this rule placed unrealistic and unwarranted restrictions
on everyday activities, and that the highway is a public place that the public has a right
to enjoy for any reasonable purpose. Bennion argues that, in making decisions like these, the judiciary are taking powers to which they are not constitutionally entitled, and that they should not extend their law-making role into such controversial areas.
