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Ability of judges to make law.Precedent & judge-made law

+Judges & law-making.

Unlike parliament, judges are not free to make law whenever the need arises.

Judges can only make law when an appropriate case comes before a superior court.

Parliament however can make a law whenever the need arises, which is an important strength as parliament as a law-maker.

This is an example of a weakness of both the operation of precedent, and of the courts as a law maker.

+Therefore….

Judges are limited in their ability to make law.

The restrictions placed on their law making abilities are:

+Restrictions on a judges ability to make law

RESTRICTION 1

Judges can only make law if there is a test case (novel case) before them. That is they must wait for a case to arise with a legal issue that has not previously been considered by any court or which tests the validity of an existing law which requires interpretation of an existing law.

What is an example of this?

+DONOGHUE V STEVENSON

Snail in a bottle

+Restriction 2

The position of the court in the hierarchy, only superior courts in the hierarchy create precedent. These are the courts of record where the judgments are reported

+Restriction 3

The type of legal case and the mode of trial. Precedent is USUALLY only established in cases on appeals. (where there is no jury)

+Restriction 4

The personality of the judge- some judges are conservatives, who see their role to adjudicate cases and not to make laws, while other judges are progressives, who see their role as both an adjudicator AND a law-maker.

A conservative judge is likely to leave the law-making to Parliament as they are the supreme law-making authority.