Do Judges Have a Creative Role in the Process of Adjudication? Discuss the Role of Judges and How the Exercise of Judicial Powers May, at Times, Come Into Conflict with the Powers of the Legislature in the Common Law
Introduction
Judges do create law in the process of adjudication, especially when there are no precedent, competing precedents, or ambiguous law, Such judicial creativity, however, leads to a potential conflict between the judiciary and the legislature, since judicial law-making overlaps with the legislature’s function to enact law. To strike a balance between these two branches, self-restraint among judges is crucial. Whenever judicial law-making is unavoidable, it must be done subject to strict restrictions. Both HK and UK cases will be used in this article to support the analysis.
Judicial Creativity
Both Ronald Dworkin and William Blackstone denied the creative role of judges. Dworkin regards law as a “seamless web”: since legal principles deduced from precedents never run out, judges can simply apply them to the adjudicating case, and need not to use their discretion in making laws. Meanwhile, under Blackstone’s declaratory theory, judges do not make law but, by rule of precedents, discover and declare the law that always exists. To him, precedent offers no choice for judges to choose between different interpretations of law. These two notions, nevertheless, are flawed.
Dworkin has neglected the fact that legal principles do not ordinarily exist: every legal principle was created by judges at some times in history. Also, given the fast-paced development of society, there must be cases that law has never dealt with before they come before the court. Without the guidance of precedents, judges nevertheless have to make law.
Concerning Blackstone’s declaratory theory, it may be accurate in describing the role of judges wherever the existing law is clear and the facts of the adjudicating case fall squarely within the existing precedents. Nevertheless, a judge may encounter novel situations in which several precedents compete with each other. In this case, it is difficult to say that the judge can declare what is the law. He has to make a decision
Judges do create law in the process of adjudication, especially when there are no precedent, competing precedents, or ambiguous law, Such judicial creativity, however, leads to a potential conflict between the judiciary and the legislature, since judicial law-making overlaps with the legislature’s function to enact law. To strike a balance between these two branches, self-restraint among judges is crucial. Whenever judicial law-making is unavoidable, it must be done subject to strict restrictions. Both HK and UK cases will be used in this article to support the analysis.
Judicial Creativity
Both Ronald Dworkin and William Blackstone denied the creative role of judges. Dworkin regards law as a “seamless web”: since legal principles deduced from precedents never run out, judges can simply apply them to the adjudicating case, and need not to use their discretion in making laws. Meanwhile, under Blackstone’s declaratory theory, judges do not make law but, by rule of precedents, discover and declare the law that always exists. To him, precedent offers no choice for judges to choose between different interpretations of law. These two notions, nevertheless, are flawed.
Dworkin has neglected the fact that legal principles do not ordinarily exist: every legal principle was created by judges at some times in history. Also, given the fast-paced development of society, there must be cases that law has never dealt with before they come before the court. Without the guidance of precedents, judges nevertheless have to make law.
Concerning Blackstone’s declaratory theory, it may be accurate in describing the role of judges wherever the existing law is clear and the facts of the adjudicating case fall squarely within the existing precedents. Nevertheless, a judge may encounter novel situations in which several precedents compete with each other. In this case, it is difficult to say that the judge can declare what is the law. He has to make a decision