Should Judges Make Law Flashcards
Who is one of the strongest judicial activists?
Lord Denning
What word bests describes the debate on whether judges should make law?
It is controversial
What is one of the theories for judges making law?
The declaratory theory
What does the declaratory theory set out?
It says that judges do/should not create or change law but they declare what the law has always been. Some traditional judges support this by saying that judges should respect the supremacy of parliament and not engage in the law making process.
What is an example of the declaring theory in action?
Howe and Bannister (1987)
What happened in the case of Howe v Bannister (1987)?
Lord Hailsham stated that it was for parliament to change the law on duress not the courts, which is why it is not available for murder
What are examples of judges making law?
R v R (1991) which declared rape within marriage illegal
Donoghue and Stevenson (1932) established a general duty of care in negligence
The mischief rule in statutory interpretation gives judges creative scope to fill the gaps based on parliaments intention
What is judicial activism?
When law is made or adapted by judges
What did Lord Denning say in ‘the reform of equity’?
‘The judges do every day make law, though it is almost here say to say so’
What allows for judges to make law?
The 1966 practice statement
What are the arguments for judges creating law?
They can make it more appropriate as they see the cases first hand, unlike parliament
It is time saving as it saves making law through the parliamentary procedure
Judges have more expertise than parliament
Briefly, what is the argument against judges creating law?
It undermines parliament sovereignty
If judges are given too much power then law could be based on their opinions rather than justice and equity
Some members of the public may not like this as they believe judges are case hardened
