Judges, Common Law & Sep of Powers (1 Viewer)

[NeLLi19]

Hi there,

I am a first year Uni student and I have an essay to complete in relation to the following statement "Judges create and expand the common law. The fact that they do so is a clear and undesirable breach of the doctrine of sepration of powers".....Critique this statement. Make sure you give reasons why you do or do not agree with it.

Now... after reading ALLLL my material I think I am on the right track, was wondering if someone of a very "Legal Capacity" could give me their views so I know I am on the right track!

Most Appreciative!!

Regards
N

 

[MoonlightSonata]

How about you put some of your views first and then we'll give you feedback on them.

 

[NeLLi19]

Hi there

Ok,,, see I am not sure but here is my view at the moment (scared someone will tear it apart!!!).

For Judges to create and expand common law, it is a breach of the sep of powers due to the third arm, being Judiciary as they have to "enforce" the laws that are made, however i wouldnt class it as an undesireable breach because if you refer to Donoghue v Stevenson [1932] AC 562 it shows that many bodies of law was used towards this case law and the way different Judges had interpreted it being similar facts etc etc and also wouldnt it be a good thing for Judges to create and expand common law as our society changes continuously,............. thats were i am at- at the moment, tho everytime I read something I find myself getting more and more confused.....

Does that make sense sorry been sitting here for hours to get my head around it....would I be on the right track or not?

Regards
N

 

[MoonlightSonata]

Some things for you to consider:

• What is the role of a judge? Do judges make law or simply interpret/follow law?
• If judges engage in judicial activism, do not follow the law and ignore precedent or statute, what are the judges using to guide them? If judges are using their own values, are these values not subjective, and therefore will court decisions be arbitrary or uncertain?
• Does using subjective values instead of precedent undermine the rule of law?
• What do you do if you do not like a judge's decision? How can the judge be held accountable? Contrast this with the law-making body, Parliament. How can Parliament be made accountable? Is there a reason, therefore, why judges should not be making law?
• Do judges have choices? If so, is it inevitable that judges will be required use subjective values? Is it therefore better to acknowledge them, rather than hide behind a fictional machine-like guise of neutrality?

Articles which may be of assistance:

• Justice Dyson Heydon, 'Judicial activism and the death of the rule of law' (2003) 23 Australian Bar Review 110.
• Justice Michael Kirby, 'Beyond the Judicial Fairy Tales' 48 Quadrant, January 2004.
• Sir Anthony Mason, 'Legislative and Judicial Law-making: Can We Locate an Identifiable Boundary?' (2004) 24 Adelaide Law Review 15.
• John Gava, 'Another Blast from the Past or why the Left should Embrace Strict Legalism: a Reply to Frank Carrigan' (2003) 27 Melbourne University Law Review 186.

 

[NeLLi19]

Hi Moonlight

I see......... thanks for your imput, makes sense the ?'s u put down, it opens my mind up a bit more. Thanks for that


I shall keep researching and reading.

Totally appreciative.

Nelli

 

[hYperTrOphY]

Read the articles MS has listed for you. Also:

Sackville R, 'Why do judges make law? Some aspects of judicial law making' (2001) 5 UWSLR 59

 

[melsc]

I was going to suggest the Judicial Activism article but MS beat me to it. That was one of the articles that stuck in my mind after intro last year.

 

[NeLLi19]

Hi guys!

Thanks so much for the imput! Really appreciate it!!

I have had my head down and A** up researching and all you have all been a tremendous help!!

THANK YOU THANK YOU THANK YOU!

Regards

Nelli xox