Do Judge Make Laws?

However, when it comes to this, it does not mean that the Judges have the power to change the law, nor make new saws. All these laws “made” by the Judges are inferior to the parliament and delegated legislation thus can be overruled. Until the Judge-made law is overruled, it is considered as a precedent and stands as a decision on non-statutory points of law, and is subjected to the same rule of stare decides. The reason why we have Judicial precedent is that most of the English laws are derived from the statutes and common law.

It then falls into the hands of the judges to interpret them and evolve the law to make a better law. Judicial precedent, known also as the Judge-made law, has two meanings. Firstly, it means the process where the Judges of lower or equal courts follow the decision of the Judge from previous cases. Secondly, it refers to the decided case itself, where a ‘precedent’ is set to be used in the future cases. The doctrine of Judicial precedent in the English law is one that involves the application of the principle of stare decides.

This principle is set that the Courts of Appeal is bound to follow it’s own previous decisions, and that each court is bound to follow the decisions imposed by the courts above them in the hierarchy. However, nice the I-J Joined the European Union, the courts are bound to follow the EX. law given by thee European Courts. According to the Oxford dictionary of law, a ratio deciding is the principle or principles of law on which the courts reaches its decision .

Obiter dictum is something that is said by a Judge wile giving Judgment that was not essential to the decision of the case . The ratio deciding and orbiter dictum both essentially influences the decision- making or the Judgment of a Judge. When a Judge delivers his Judgment in a case, he outlines the facts that he finds that have been proven as evidence. Then, he uses Do Judge Make Laws? By Uncomments ratio deciding of a case is where the decision of the Judge is based together with the principle of the law.

Then, when giving his Judgment, the Judge may go on to speculate about what would have happen if the facts may have differed. This is the obiter dictum in the case. Consequently, the ratio deciding is the binding part of the Judicial decision, whereas, the obiter dictum is not binding. The obiter dictum of the case acts as only to support as a persuasive authority in later cases. But sometimes, certain opinions of a case in the House of Lords are mistakenly treated as obiter dictum at first sight. On closer inspection, these opinions are not seen as obiter dictum but merely forming part of a ratio deciding.

Leave a comment