Do judges make law?
University of London
Common Law Reasoning Institutions
Essay Title: “There can be no real argument about it: judges make law. The declaratory theory is more or less nonsense.”
Student Number: 120448995
Candidate Number: 150573
Historically there are lots of arguments by the philosophers and the critics that judges make law or not. Actually judges are meant only to interpret the law. This can be seen that somehow they are making law but the question arises whether this is lawful or not. Declaratory theory is ignored by various ways. Judges make law by stating that the fact is significantly different from the cited precedent.
The English judiciary continues to maintain its institutional commitment to the declaratory theory of law, a theory that can be traced back to Blackstone and beyond. In short, what appear to be changes made to the law, by judicial decision, are to be regarded, rather, as declaring what the law is, and always was. In jurisprudential terms, of the adequacy of the theory but the recent decision of the Court of Appeal (Criminal Division) in R. v Cottrell1, R. v Fletcher2 brings into the practical difficulties that may attend adherence to that theory, as well as raising the issue of whether or not it is still appropriate to apply it to criminal appeals.3
The court was faced with fall-out from the decision of the House of Lords in R. v J 4. In that case, the House had decided that it was unlawful for the time limit on prosecutions for sexual intercourse with a girl under the age of 16, one of 12 months from the date of the alleged offence, to be circumvented by charging the intercourse in question as indecent assault, to which offence no such time limit applies.5
Mr. Bowen examines the decision of the House of Lords in Kleinwort Benson Ltd v Lincoln City Council6, with its reaffirmation by the majority of the declaratory theory of judicial decision making, en route to their decision that there had been a mistake of
Common Law Reasoning Institutions
Essay Title: “There can be no real argument about it: judges make law. The declaratory theory is more or less nonsense.”
Student Number: 120448995
Candidate Number: 150573
Historically there are lots of arguments by the philosophers and the critics that judges make law or not. Actually judges are meant only to interpret the law. This can be seen that somehow they are making law but the question arises whether this is lawful or not. Declaratory theory is ignored by various ways. Judges make law by stating that the fact is significantly different from the cited precedent.
The English judiciary continues to maintain its institutional commitment to the declaratory theory of law, a theory that can be traced back to Blackstone and beyond. In short, what appear to be changes made to the law, by judicial decision, are to be regarded, rather, as declaring what the law is, and always was. In jurisprudential terms, of the adequacy of the theory but the recent decision of the Court of Appeal (Criminal Division) in R. v Cottrell1, R. v Fletcher2 brings into the practical difficulties that may attend adherence to that theory, as well as raising the issue of whether or not it is still appropriate to apply it to criminal appeals.3
The court was faced with fall-out from the decision of the House of Lords in R. v J 4. In that case, the House had decided that it was unlawful for the time limit on prosecutions for sexual intercourse with a girl under the age of 16, one of 12 months from the date of the alleged offence, to be circumvented by charging the intercourse in question as indecent assault, to which offence no such time limit applies.5
Mr. Bowen examines the decision of the House of Lords in Kleinwort Benson Ltd v Lincoln City Council6, with its reaffirmation by the majority of the declaratory theory of judicial decision making, en route to their decision that there had been a mistake of
Bibliography: 1. R. v Fletcher [2007] EWCA Crim 2016; [2007] 1 W.L.R. 3262 2