03/06: Does judge-made law mean that judges act as legislators?
The UK system has three main sources of law: statute law, the common law and European Community law. Statute law is the primary source of UK law, consisting of Acts of Parliament, and also known as legislation. The common law – also known as judge-made law or case law – is subordinate to statute law, but still a significant part of our legal system. The common law was traditionally the main source of law in the UK, while now it primarily fills the gaps between statutes and provides the system of precedent – a system of principles and guides to the application of statute law based on past cases. Additionally, when no relevant statute law exists on a particular matter, the courts will look to the common law. For example, the offence of murder is not set out in statute law - it is a common law offence.
Judges thus decide cases based on the application of both statute law and the relevant case law to the circumstances of the case. Not all previous decisions or all aspects of a previous decision will be binding; the statement of law must be made by a court of sufficient seniority and the statement must have formed the ratio decidendi of the case, meaning it formed the legal basis for the decision. Other parts of a decision may only be obiter dicta (Latin for ‘said by the way’) and only of persuasive, rather than binding, authority. Additionally, a case might be distinguished because the circumstances are slightly different, which is often the situation.
Some commentators believe that judges have too much power and usurp the rightful boundaries of their role. Such views can be seen in the frequent media uproars that sentences handed down by judges to criminals are not appropriate uses of the sentencing power. ‘Judicial activism’ is a term used to describe the judicial construction of statutes so differently from their original legislative intent that the resulting application of them can more accurately be attributed to the judiciary, rather than to the legislature. It is also used critically to describe decisions that are based more upon personal and political considerations than on the existing law.
The issue of judicial activism is closely tied to concept of the separation of powers – the separation of power between the different arms of government: the legislature, the executive and the judiciary. Some people are of the view that because the legislature is the only body elected by the people it is the only body that should appropriately decide the law. However, others believe that the judiciary is an essential check on the power of the government, and necessary to apply rigid laws to individual circumstances. Also, the judiciary may be required to respond to changing circumstances when the legislature is too slow to respond. However, whilst judges may be applying the law differently, they do not create the law – they are not legislators in the true sense of the word.
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Judges thus decide cases based on the application of both statute law and the relevant case law to the circumstances of the case. Not all previous decisions or all aspects of a previous decision will be binding; the statement of law must be made by a court of sufficient seniority and the statement must have formed the ratio decidendi of the case, meaning it formed the legal basis for the decision. Other parts of a decision may only be obiter dicta (Latin for ‘said by the way’) and only of persuasive, rather than binding, authority. Additionally, a case might be distinguished because the circumstances are slightly different, which is often the situation.
Some commentators believe that judges have too much power and usurp the rightful boundaries of their role. Such views can be seen in the frequent media uproars that sentences handed down by judges to criminals are not appropriate uses of the sentencing power. ‘Judicial activism’ is a term used to describe the judicial construction of statutes so differently from their original legislative intent that the resulting application of them can more accurately be attributed to the judiciary, rather than to the legislature. It is also used critically to describe decisions that are based more upon personal and political considerations than on the existing law.
The issue of judicial activism is closely tied to concept of the separation of powers – the separation of power between the different arms of government: the legislature, the executive and the judiciary. Some people are of the view that because the legislature is the only body elected by the people it is the only body that should appropriately decide the law. However, others believe that the judiciary is an essential check on the power of the government, and necessary to apply rigid laws to individual circumstances. Also, the judiciary may be required to respond to changing circumstances when the legislature is too slow to respond. However, whilst judges may be applying the law differently, they do not create the law – they are not legislators in the true sense of the word.
Contact Law is the UK’s leading legal brokerage company, helping you find the right solicitor. Whatever your situation, call us on 0800 1777 167 or fill in the web-form above and let our dedicated case handlers match you to the best solicitor for your needs.
Sentencing wrote: