NEGLIGENCE -judicial creativity essay

Question 1

DO JUDGES MAKE LAW-what may be questioned?

Answer 1

the creativity of judges when interpreting and developing common law and stat law may be questioned

Question 2

DO JUDGES MAKE LAW-what may firstly be asked?

Answer 2

firstly it may be asked whether judges actually make the law

Question 3

DO JUDGES MAKE LAW-what is according to the declaratory theory?

Answer 3

the judiciary do not invent or make the law only declare it

Question 4

DO JUDGES MAKE LAW-what is the dec the supported by?

Answer 4

william blackstone

Question 5

DO JUDGES MAKE LAW-what did william blackstone state?

Answer 5

“that judges do not make but merely discover and declare law that has been”

Question 6

DO JUDGES MAKE LAW-what can be seen with blackstone?

Answer 6

that blackstone disproves of any suggestion that the precedent offers a choice of two of two or more interpretations

Question 7

DO JUDGES MAKE LAW-what did blackstone stat with disproves?

Answer 7

“where a bad decision is made the new one that reverses or overrules it is not new law but declaration that previous law was not law “ in other words it was the wrong answer

Question 8

DO JUDGES MAKE LAW-what can be argued with blackstones view?

Answer 8

that it is out of touch with reality bc there are plenty f e.gs where judges have created new law where one did not previously exist - also some decis = reversed not cause wrong but bc society changes overtime

Question 9

DO JUDGES MAKE LAW-who also agrees with the declaratory theory?

Answer 9

Ronald Dwokin

Question 10

DO JUDGES MAKE LAW-what did Ronald Dwokin say?

Answer 10

“judges have no real discretion in making case law”

Question 11

DO JUDGES MAKE LAW-what is another theory and also constrats declaratory theory?

Answer 11

creativity theory

Question 12

DO JUDGES MAKE LAW-what is the creativity theory?

Answer 12

judges do infact create law via precedant and stat interp

Question 13

DO JUDGES MAKE LAW-what do they argue?

Answer 13

that there is a large amount of discretion by judiciary to be creative and develop law.

Question 14

DO JUDGES MAKE LAW-what is there a suspicion with?

Answer 14

such creative power allows judiciary to impose their political, moral, social and economic will on the majority.

Question 15

DO JUDGES MAKE LAW-what is lord reid a supporter of?

Answer 15

creative theory declaring that “ we must accept fact that for better or worse judges do make law”

Question 16

DO JUDGES MAKE LAW-who is another supporter of the creative theory?

Answer 16

kairys (legal philospher) he argued “that judicary enjoys considerable freedom within the doctrine of the precedent and therefore have great scope to be creative”

Question 17

SHOULD JUDGES MAKE LAW-in order to establish whether judges are creative what must be asked?

Answer 17

should judges make the law

Question 18

SHOULD JUDGES MAKE LAW-what might judges deny?

Answer 18

judges might deny that they make law could be due to the fact that they dont want to risk confrontation with parl that might make their creative power limited

Question 19

SHOULD JUDGES MAKE LAW- what is very critical?

Answer 19

that parl authority can be undermined by individ judges who choose to apply law in way parl dont

Question 20

SHOULD JUDGES MAKE LAW- what is further argued?

Answer 20

judges are able to be creative by hiding behind public interest claiming that dec is for general public good

Question 21

SHOULD JUDGES MAKE LAW- what do the above factors raise the issue of?

Answer 21

why is there such a strong opp of judical law making- some if not most of dec they give are valuable ones that have aided the law to move with ever changing times for e.g r v r

Question 22

SHOULD JUDGES MAKE LAW- what also has to be accepted?

Answer 22

english system could not work without creative help of judge as parl just dont have time to create law for every single event

Question 23

SHOULD JUDGES MAKE LAW-what may the opposition come from?

Answer 23

the fact that judiciary are in minority in terms of class,views and age

Question 24

SHOULD JUDGES MAKE LAW-what could be considered?

Answer 24

matters of principle and policy when looking at extent to which judges can be creative

Question 25

SHOULD JUDGES MAKE LAW-what is matters of principle and policy?

Answer 25

said that matters of policy should be and are left to parl to decide and incorporate into statute

Question 26

SHOULD JUDGES MAKE LAW-what did dworkin argue?

Answer 26

that parl deals with matters of legal pol whilst judicary deal with applying principles hw no doubt that judges do get involved with matters of policy

Question 27

HOW JUDGES MAKE LAW-what are examples of judges being involved with matters of policy?

Answer 27

hill v chief const of west yorks - lost case on decision of policy the court said it would be undesirable to place such a burden on police

Question 28

HOW JUDGES MAKE LAW- what may the way in which judges create law also include?

Answer 28

creative elements

Question 29

HOW JUDGES MAKE LAW-what might judiciary creativity occur by?

Answer 29

system of precedent, precedents are orginal when court addresses a point of law for first time e.g re a -court established a new precdent when it declared that an operation to seperate co joined twins was lawful even though result of death in babies- so sometimes judges forced to make through through necessity and in this case = urgent where no specific statute to rely on

Question 30

HOW JUDGES MAKE LAW-what can overruling also allow?

Answer 30

creativity to the system of precedent e.g r v r h.o.l overruled their own 250 yr old ruling in hales statement. this allows judges to modify law in light of changes to social conditions

Question 31

HOW JUDGES MAKE LAW- what is distinighuising?

Answer 31

another method which involves creativity in law making

Question 32

HOW JUDGES MAKE LAW-the legal rule in hales statement of 1736 said?

Answer 32

that a man cannot be guilty of rape of his wife because by being married she consents to sexual int would have been unpopular decision back then by 20th = controversial and out of place of modern society

Question 33

HOW JUDGES MAKE LAW- what did judges do in response to hales statement?

Answer 33

finding ways around precdent to do justice e.g r v clarke -husband charged of rape

Question 34

HOW JUDGES MAKE LAW- what is another area where great deal for judicial creativity?

Answer 34

stat interp

Question 35

HOW JUDGES MAKE LAW-what is good with stat interp?

Answer 35

one of roles of judge is to interp stat of what parl intended. do rules and approaches e.g lit role = x judiciary creativity could be true but depends on judge interp of words of the act in itself

Question 36

HOW JUDGES MAKE LAW-what is another rule with stat interp?

Answer 36

golden rule where judges = discretion which may help to keep in line with public policy or certain develops e.g r v national insurance commissioner ex.parte connor

Question 37

HOW JUDGES MAKE LAW-what could judicial creativity also be used for?

Answer 37

mischief rule judges that are deemed to use = more flexible with interpreting and with most discretion. e.g smith v hughes

Question 38

EVAL OF JUDGES MAKING LAW- what may commentators argue?

Answer 38

that there is justification for judges making law whereas others may disagree

Question 39

EVAL OF JUDGES MAKING LAW- what is it with the hieracal system?

Answer 39

where more senior courts can over rule dec the lower courts = only more senior judges make judges and ensures this

Question 40

EVAL OF JUDGES MAKING LAW- what does precedent ensure?

Answer 40

that urgently needed law is created that would take to long to wait for parl . courts can quickly lay down new principles or extend old to meet novel circumstances

Question 41

EVAL OF JUDGES MAKING LAW- what do many disadvantages also arise from?

Answer 41

judges making law through prec. precedent may produce justice in the individ case but injustice in generality of cases. it would be undesirable to treat a no. of claimants unjust simply cause of one binding case laid unjust rule

Question 42

EVAL OF JUDGES MAKING LAW- what are some judicial dec made?

Answer 42

hastily such as Re S (1996)

Question 43

EVAL OF JUDGES MAKING LAW- what could be said with the literal rule?

Answer 43

that it limits their power to be creative. Often preferred as parl are supposed to be offical law making body.

Question 44

EVAL OF JUDGES MAKING LAW- what is in opp of the literal rule?

Answer 44

golden rule - will give a degree of creativity to the judicary as it allows them to go beyond the strict application of the act and apply their own interp and in some cases opinion in order for justice to be done