The official line is of course that judges do not make law, however in a real sense they do in a number of circumstances:
(1) Interpretation:
Parliament can't forsee every eventuality, or explain every term in its statutes exhaustively, so the need will arise for judges to interpret the statute so as to apply it to the case before the courts.
Many issues are treated as mere interpretation when they in fact go beyond interpretation:
(2) Filling in the Gaps:
Sometimes there is simply no express law on a matter which arises. For example, the Factortame cases, there was no law as to UK statutes were to be dealt with when they conflicted with EU law. As a result of decisions in EU courts, the House of Lords hastily developed new doctrine to allow the statute in question to be "disapplied" without completely abandoning the principle of parliamentary supremacy. This decision was heavily influenced by political expediency - the alternatives would have involved fundamental changes in the UK constitution or a break with the European Court of Justice.
(3) Common Law
There are areas where there is no statute law. In these instances judges build on previous cases law in a way that could be called law making. For example the rule in Rylands v Fletcher and it's amalgamation into nuisance in the Transco case.
Since 1966 it has been possible for the house of lords to reverse its own previous legal decision - the obvious case is R v R (not A v A) concerning rape within marriage.
(1) Interpretation:
Parliament can't forsee every eventuality, or explain every term in its statutes exhaustively, so the need will arise for judges to interpret the statute so as to apply it to the case before the courts.
Many issues are treated as mere interpretation when they in fact go beyond interpretation:
(2) Filling in the Gaps:
Sometimes there is simply no express law on a matter which arises. For example, the Factortame cases, there was no law as to UK statutes were to be dealt with when they conflicted with EU law. As a result of decisions in EU courts, the House of Lords hastily developed new doctrine to allow the statute in question to be "disapplied" without completely abandoning the principle of parliamentary supremacy. This decision was heavily influenced by political expediency - the alternatives would have involved fundamental changes in the UK constitution or a break with the European Court of Justice.
(3) Common Law
There are areas where there is no statute law. In these instances judges build on previous cases law in a way that could be called law making. For example the rule in Rylands v Fletcher and it's amalgamation into nuisance in the Transco case.
Since 1966 it has been possible for the house of lords to reverse its own previous legal decision - the obvious case is R v R (not A v A) concerning rape within marriage.
Further more In recent times there has been a very real sense in which the judges make the law, as so often when Parliament has passed legislation, it is then overturned by the courts on the basis that it infringes the Human Rights legislation. The Court of Human Rights will then direct the UK to change the law accordingly.
The doctrine of precedent has also led to much of the law being effectively judge made.
http://www.justis.com/titles/iclr_s32400…
http://www.socyberty.com/Law/Judicial-Pr…
http://www.ialsnet.org/meetings/enrichin…
Lastly Donogue V stephenson is the best case ever. Judges do make law. It is known as Case Law or Judge Made Law. They interpret the Statute Law but equity has to be the applied doctrine. So that the courts and judgement are fair to every citizen. The Court of Appeal set law every day, their decisions become law this creates flexibility and a progressive judicial system. They can not alter the statute law as it is literally written. Hence the law on suicide/murder where terminally ill people are aided to die can not be dealt with by the judges because of the statue law on suicide and murder. this can only be changed by the government who create the Statute Law and is the most powerful law maker.
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