Judicial creativity Free Essay, Term Paper and Book Report
According to William Blackstones declaratory theory, judges do not make law, but merely discover and declare the law that has always been. Lord Slynn in Brown argued that law making in sensitive areas of public policy should be left for Parliament. Before Parliament makes law, there is usually been research into the area of law that requires change e.g. by the law commission. Also there is a consultative processing, allowing interested parties to have a say in the proposal, and the bill will go though a formal process of scrutiny. Judges on the other hand do not have these facilities and do not represent society. The majority of senior judges come from similar elite backgrounds. Many argue that they are out of touch with todays society.
However, in practice judges do make law. When there is a new situation and there is no earlier decided case on the matter in hand, then the judges decision would create new law and therefore a new precedent, for example, in Bland the court had to decide whether it was lawful for a doctor to switch off the life support machine of a patient. S......
Word Count: 1649
Page Count: 6.5 (250 words a page / double spaced)
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