The Objectivity of Judge's Discretion and Decisions

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Judicial precedent is where past judgements make law for judges to refer to as a tool for future legal matters. Controversial issues arise surrounding this principle because it can form disagreeable decisions and outcomes in matter of principle especially in attempts of law reform. Will be examining the advantages and disadvantages of using the doctrine thus differential perspectives which will assist me to resolute whether judge made law is objectionable in point of principle as a means of law reform.
Firstly, binding precedent is known as the doctrine of stare decisis where an existing law must be followed by the courts and stand by the decision already made. Lower level courts are obliged to abide by and follow the legal principles set by the higher courts within the court hierarchy. Consequently, similar cases decided in a similar way allows for the courts to carry out certainty also save time in common law since alike issues doesn’t need to be re-evaluated. Furthermore, promotes consistency as they are not decided arbitrarily; manifesting a restriction towards judge’s discretion in order to avoid and minimise biasness. This is a key advantageous factor because it enables the courts when resolving disputes, advocating and implementing change in the legal system, to act in a neutral manner. Further conveys judges to be impartial which is crucial in a democracy because those that stand before them will be fully certain that their legal dispute will be decided equitably and in accordance with the law.

On the other hand, limiting judge’s discretion slows down their power to amend law if needed because it can’t be changed until a case on a point of law comes before one of the higher appellant courts. Insinuating, that following precedent doesn’t save time it consumes it as a means of reform. C.K. Allen holds a supporting view expressing how “the creative power of the courts is limited by the existing legal material at their command. They find the material and shape it. The legislature may manufacture entirely new material”. Illustrates how the courts are rigid thus unpredictable in developing legal matters fully when scrutinizing existing laws. Raises questionability of their legal role and whether justice is completely served when endorsing amendment in the system. For instance, the house of lords in C v DPP didn’t want to reform the presumption of criminal liability of children under 14, articulating parliaments duty to make such a modification. Highlighted by Lord bridge of Hardwick and lord Ackner, there are various reasons why this is the case, as issues raised are socially and politically controversial which could lead to anomalies and absurdities. Such an issue should be dealt with by parliament to avoid usurpation of parliament function and confusion. Emphasises judge’s inability to deal and fixate complex cases like this, indicating their objection in point of principle as a means of reform because their role is just to declare thus interpret law whereas parliament can create and make drastic amendments.

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Additionally, waiting for reform by parliament, can be a “lesser evil compared with judicial law making... seems to create... as many problems as it solves”. But if “judges resist the temptation of reform the law in piecemeal fashion, parliament is more likely to be pressurised into passing reforms”. Leads to a perplexing issue of rectifying excessive claims. Further demonstrates either way the judiciary still will create more problems regardless, so in point of principle is objectionable.

The supreme courts previous decisions aren’t bound so can overrule or reverse an unfair judgement made. R v R is a key example of this and how the judges can implement change in the legal system without parliaments involvement. Lord lane CJ conveyed how this isn’t the “creation of a new offence it is the removal of a common law fiction which has become anachronistic and offence and we consider that it is our duty having reached that conclusion to act upon it”. House of Lord concurred with Lord lane. Illustrating judicial independence to advocate change without usurping parliaments function to legislate. Therefore, judges can declare and make new law by reforming common law thereby maintaining clarity. The decision was overturned as it was finalised that rape can be committed within a marriage. Highlighting that the courts aren’t always bound and can fixate the law in accordance with social changes, as a result isn’t objectionable in point of principle as a means of reform.

Even though the judiciary overruled the unfair case it doesn’t mean they fixate every problematic legal matter in need of reform, conveying the inconsistency in doctrine. For instance, in offences against the person act 1861 the language used is outdated, terms malicious and grievous aren’t really used in today’s modernity. Proposes that there are still areas in the legal sector that need reform and evidently not all case law is applicable to today. Further suggests interpreting language can lead to different viewpoints amongst judges especially if they aren’t following precedent which can cause confusion and uncertainty. Fundamentally the doctrine of precedent does produce issues with certainty because there is ongoing controversy during developing the law amongst judges because they will all hold variety of contrasting views when analysing it, leading to not producing clear principles. Seen in Herrington v British Railway Board [1972] AC 877 whereby amendment by the law lords was criticised because there wasn’t a “clear principle applicable to the generality of cases”. In agreeance with ATH smith it emphasises how judge made law is objectionable as it creates uncertainty and is problematic.

Leads me to conclude that common law is objectionable in point of principle as a means of reform because there are still numerous issues that outweigh the advantages such as the inconsistency because there are other legal areas in need of reform and limiting factors of judgment in order to not usurp parliaments function. Although its acknowledged that the judiciary have given a positive affect in contributing to law reform but there is still a lot of issues needed to be resolved.

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