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This essay seeks to establish several areas in which Judges do not make law, they merely uphold and apply
existing laws. The law of England and Wales primarily comes from two sources,
The houses of Parliament and the courts. In relation to law made by the Parliament,
a bill must be approved by both the House of Commons and the House of Lords and
once the bill receives the royal assent, the resulting Act of Parliament is
recognised as law. Equally, cases decided by the courts which interpret Acts of
Parliament or develop the common law are recognised as a source of law.
Originally, the law made by judges through case law was the most important
source of law, as Parliament met infrequently. However, with the predominance
of Parliament as the law-maker, legislation increasingly became the main source
of law.

The role of a judge is not to make laws, but to uphold the
laws which are formed by Parliament and the courts When
deciding cases, judges must look to the relevant previous case law. In doing so
judges have to abide by stare decises, the doctrine of judicial
precedent, which means that like cases must be decided alike. Courts are
arranged in hierarchy, the
judgements of superior courts serve as precedential bodies and are binding on inferior
courts to follow an applicable holding of the same jurisdiction. For example,
A principle stated in the supreme Court must be applied by lower courts like
the Court of Appeal or the High Court. A decision of a previous court will only
be binding if the facts of the instant case are sufficiently similar to the previous
case so that the ratio decidendi or rule of law from the previous case should
be applied.

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The ratio decidendi of a case is not the decision reached in
a case but the rule of law upon which decision is based. Judges will often agree
as to the outcome of a case but disagree as to how the decision was reached,
therefore leading to multiple judgements and multiple disagreements amongst the
judges of the Court of Appeal and the Supreme court impacting on the ratio decidendi
of the case. If a judge dissents as to the decision to be reached in a case,
then the judgement is to be ignored as far as the doctrine of precedent is
concerned. In a case, other statements as to the law under consideration may be
made by judges which do not affect the outcome of a case. Such statements are
referred to as obiter dicta, which are not binding on later courts, they are
merely persuasive. For example, in R v
Howe
& Bannister 1987 2 WLR 568 the House of Lords held that
the defence of duress was not available to murder. This was the ratio decidendi of the case. The
House of Lords went on to consider whether the defence should be available to
those who attempt murder and stated obiter dicta
that the defence of duress should not be available to attempted murder.

The difference between obiter dicta and ratio decidendi of a
case is that as the statements are not the basis for the decision in a case,
they may not have been the subject of full argument or judicial consideration. However
Certain superior courts are not bound by their own decision. Judicial precedent promotes certainty and allows
for the orderly development of the law to be decided and applied with
consistency and fairness to all.

Judge-made law is referred to as the common law, which is developed from
judgments handed down in court to decide cases brought before them. It is most
often used to make decisions about areas that are not included in Acts of
Parliament. However, Judges are still required to interpret legislation, which
is the law made by Parliament if there is a dispute about the meaning or how to
apply an Act in a case. These interpretations then become part of the common
law. Judge-made law is retrospective which means a statement of law in a
later case applies to situations that may have already occurred.

There are three distinct types of methods of avoiding precedents. The first
is overruling, this occurs when a later court decides that the law as stated in
an earlier and different case is wrong and no longer represents the law. Overruling
can only be done within the bounds of the doctrine of stare decisis. The supreme
court can overrule its previous decisions and those of lower courts, such as
the courts of appeal cannot overrule a precedent of the Supreme court. When a
court overrules a previous case the effect is retrospective, the previous case
has never represented the law and the new case has always been the law. Supporting
this is an example where the supreme court depart from its previous
decisions.  In Murphy v Brentwood the
house of lords in effect overruled Anns v Merton.  The defendant local authority failed to inspect
the foundations of a building adequately. When the building became dangerously
unstable, the claimant, being unable to raise any money for repairs, had to
sell the house at a considerable loss. He sought to recover his loss from Brentwood District
Council, but this action failed as the loss was
identified as a pure economic loss.

Unlike overruling,
which involves separate cases, reversing, the second method of avoiding precedents,
describes what a higher court would do in relation to a decision given by a
lower court in the same case. By reversing a decision, a higher court states
that a decision of a lower court is correct it is said to be affirmed. In the
case of Gillick v West Norfolk &
Wisbeck Area Health Authority 1986 AC 112 House of Lords Mrs Gillick was a mother with five daughters under the age of 16. She
sought a declaration that it would be unlawful for a doctor to prescribe
contraceptives to girls under 16 without the knowledge or consent of the parent.
The declaration was refused.

Distinguishing is the is the third and final method of avoiding precedents.
It is a technique which allows a court to escape a binding precedent. A court may
point to martial differences in the facts of the case constituting a precedent
and the instant case. In this way it can be decided that the ratio decidendi of
the previous case does not apply because of the differences. Supporting this
method is the case of Merritt v Merritt 1970 1 WLR 1211 Court of Appeal. A husband left his wife and
went to live with another woman. There was £180 left owing on the house which
was jointly owned by the couple. The husband signed an agreement whereby he
would pay the wife £40 per month to enable her to meet the mortgage payments
and if she paid all the charges in connection with the mortgage until it was
paid off he would transfer his share of the house to her. When the mortgage was
fully paid she brought an action for a declaration that the house belonged to
her. It was held that the  agreement was
binding. The Court of Appeal distinguished the case of Balfour v Balfour on the grounds that the parties were
separated. Where spouses have separated it is generally considered that they do
intend to be bound by their agreements. The written agreement signed was
further evidence of an intention to be bound.

 A judge is like an empire in court, they inherit
many roles in the act of law, and have the ability to sentence, deliver judgments in an impartial manner and
to apply the law fairly for both the prosecution and the defence, whilst enforcing
the Parliaments will. However in conclusion  it is  immaculately
clear that though a judge has infact many responsibilities and duties abiding
the law however Judicial law making does not exist and judges do not make
laws.The eighteenth century legal commentator
William Blackstone stated that judges do not make law, they merely follow the
rules of precedent, discover and then declare the law which had always been
there. When
judges make decisions, they are merely declaring what the law was and has
always been. C.K. Allen, in Law in the Making, explained the limits to judge-made
law in the following terms, ‘the creative power of the courts is limited by the
existing legal material at their command’ which means they simply find material
and shape it. One writer likened judge-made law to tapestry, all that judges do
is insert stitches here and there when enabled by litigation to do so, that is
when a dispute raising the area of law is brought before the courts. Judges make
partial and discreet changes to the law, this is not however to say that judges
do not make significant changes to the law. Parliament on the other hand, can
remove and replace sections of the tapestry or undertake sweeping reforms of
the law by wholly replacing the fabric.

 

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