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Do Judges Make Laws? Essay - Paper Topics

Do Judges Make Law or Merely Interpret Laws?

Common law is developed by judges through decisions of courts and similar tribunals (also called case law), rather than through legislative statues or executive branch action. A "common law system" is a legal system that gives great precedented weight to common law1, on the principle that it is unfair to treat similar facts differently on different occasions2. The body of precedent is called "common law" and future decisions are bound by it. In future cases, when parties disagree on what the law is, an idealized common law court looks to past presidential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stara desics). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, judges have the authority and duty to make law by creating precedent3. Thereafter, the new decision becomes precedent, and will bind future courts. However, the development of the common law doctrine in many cases is now of historical interest only. Although the basic principle is preserved, statutory changes have been made which modify the effects of many land mark cases.

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A law in the most general and comprehensive acceptation in which the term, in its literal meaning, is employed, may be said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.
Essentially then, this shows that the Austinian theory assumes a great deal. For example, the assumption is made by Austin that those enacting laws are ‘intelligent’ or in other words, are competent in exercising their authority to do so. Based on this assumption, the courts can then be free to apply the law in its ‘literal meaning’, without having regard for any other extraneous factors that may influence a judge’s decision. According to Austin, it is not the role of the courts to adjudicate on whether a law is just or not, but rather to apply and uphold that law. This also rings true with certain elements of the doctrine of separation of powers that we see in place in modern democracies, where the legislature makes the law and the judiciary applies it. Thus, in the Austin system, both branches would keep checks on the other, and ensure that they did not exceed their constitutional authority. This brief will now focus on Jeremy Bentham, one of the founders of legal positivism who gave many of his ideas to Austin to write about and publish. It is important to understand the works of Bentham in order to truly understand how law and morality tend to be separated in the world of analytical jurisprudence.

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Parliament is the supreme law-maker, and the judges must follow statutes. Nevertheless there is a considerable amount of case law which gathers round Acts of Parliament and delegated legislation since the wording sometimes turns out to be obscure. However, the rules relating to the interpretation of statutes are so numerous, have so many exceptions, and several are so flatly contradictory, that some writers hold view that there are in effect no rules at all.

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