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What is the role of judges and does their role allow them to be creative within the English Legal System?

    What is the role of judges and does their role allow them to be creative within the English Legal System?

    What is the role of judges and does their role allow them to be creative within the English Legal System?

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    The roles of judges are clearly defined on the rule of law. Lord Esher supports this perspective by insisting that the parliament is the only body with the mandate of making the law. Therefore, the judges proceed to interpret the law. The English legal system integrates the judicial precedent set of guidelines. These guidelines state that the court decision in any legal proceeding follows the decisions made in an earlier comparable case. It spans from the need to institute a universal law all over the land. The key benefit of English Legal system is its predictability and firmness because the judges have certain laws that they interpret. This directive enables the judge to conduct criminal and civil trials in the court. In civil courts, they have a role of establishing the outcome of the criminal and civil trials in the English courts.[1] After concluding on the outcome of a civil case, they proceed to allocate damages to the plaintiff. However, such decisions are exempted in the case of malicious trial, insult, libel and false detention.

    The parliament or precedent doctrine emphasizes that the lower courts judge should adhere to the higher courts decisions. One judge must abide by the decision unanimously made by more than one judge on the same panel. Despite of the fact that the court is the key guiding principle in decision making, the law requires the judges to specify the reasoning behind their decisions.[2] This approach is emphasized in the event whereby the decision made varies with the decision made previously for a similar case.

    Judicial creativity

    Judicial creativity refers to freedom in imposing their principles of the English legal system.[3] In judicial ruling, there are several instances that allow the judges to exercise their creativity.[4] However, there are other instances whereby the law strongly rules against creativity of the judges.[5] The doctrine of precedent specifies the law that is followed by the judges in the decision making process. This doctrine prohibits the judges from being creative within the law by specifying the ruling procedure for every legal proceeding. Stare decisis emphasize that judges should abide by the previous judgments. Another guiding principle is ratio decidendi.[6] This Latin term should explain the reasons for making a certain ruling in a case. In the court hierarchy, the higher courts give guidelines to judges on the lower courts. In such a case, the judges cannot proceed to make new decisions. For instance, the Supreme Court is the higher organ that guides judges on the lower organ such as the Court of Appeal in decision making.

    Regardless of whether or not the judiciary participates in constitution of the law rather than interpret the legislation subject to the parliamentary objective is a contentious topic that continues to raise unending debate. For instance, Lord Radcliffe maintains that the judges are involved in the process of making law. According to Radcliffe, the main controversy is the one that questions whether judges participate in making the law.[7] Eventually, he insists that “of course he does”. However, critics argue that these words “of course he does” appear explicit and distinct. In his statement, Franks Jerome state that “the explanation for judiciary unwillingness neither to disclose their creativity is nor far to seek”. In this statement, Franks seems to support the perspective held by Lord Radcliffe. In spite of this argument, the judge remains unelected individual that lacks the independent consent of making law. Additionally, judges have to be apolitical. From a theoretical perspective, the judges’ mandate is limited to interpreting and implementing the parliamentary law. The parliament is the elected representative body with the mandate of enacting the law.

    The parliamentary autonomy is a significant doctrine that maintains that the legislature has the power of making laws and judges cannot assume such responsibilities. In his argument, Dicey insists that the “parliamentary principle provides the parliament with the mandate to constitute and amend law the law in England. Therefore, no other body has the right of overturning the laws and guidelines as stipulated by the parliamentary body. In this case, the judge fall under the category of “others” prohibited from interfering with the law making process. This statement qualifies the legislature as the supreme law making body that has the mandate of creating or repealing any clause of the law. Nevertheless, this notion does not agree with the judicial law making. Therefore, conflicts emerge between the two perspectives.


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