Advantages and disadvantages of judicial law making

Introduction to Judicial Law Making

In your studies of the English Legal System, you have already seen how Parliament creates laws (statutes). However, judges also play a massive role in creating law through the doctrine of precedent. When a judge makes a decision in a case, that decision can become a rule for future judges to follow. This is called judicial law making.

But is it a good thing for judges—who are not elected by the public—to create laws? In this chapter, we will weigh up the advantages and disadvantages of this system. Understanding these points is vital for AO4 (Evaluation) marks in your exam, where you need to show you can see both sides of a legal argument.

Note: For a refresher on how the court hierarchy works or what "ratio decidendi" means, please refer to the chapter on "The doctrine of precedent in the court hierarchy".

The Advantages of Judicial Law Making

There are several reasons why having judges make law is beneficial for the legal system. Let’s break them down:

1. Certainty and Predictability

Because of stare decisis (standing by what has been decided), lawyers and their clients can look at previous cases to predict the outcome of a dispute. If the facts of your case are the same as a case from last year, you can be fairly certain the judge will rule the same way. This helps people plan their lives and business deals without constant legal confusion.

2. Flexibility

Wait, if things are "certain," how can they be "flexible"? This is the clever part of the English system! While judges are generally bound by the past, they have tools to change the law when needed. For example, the 1966 House of Lords Practice Statement allows the highest court to ignore a previous decision if it is "right to do so." This ensures the law doesn't get stuck in the past when society's values change.

3. Precision and Real-World Application

Statutes (Acts of Parliament) are often written in broad, general language. Judicial law making is precise because it deals with real-life facts. A judge looks at a specific situation and decides exactly how the law applies. This creates a detailed "map" of the law that Parliament simply wouldn't have the time or space to write.

4. Speed

Parliament can take months or even years to pass a new law. Judges, however, must make a decision on the case sitting in front of them right now. This allows the law to react instantly to new problems, such as developments in technology or urgent moral dilemmas.

Quick Review – Advantages:
• Certainty: We know what the law is because of past cases.
• Flexibility: Tools like the 1966 Practice Statement allow for change.
• Practicality: Law is based on real-life scenarios, not just theories.
• Efficiency: Judges can act faster than the legislative process.

The Disadvantages of Judicial Law Making

Despite the benefits, there are some serious criticisms of judges making law. These often center on the idea of fairness and democracy.

1. Rigidity (The "Straitjacket" Effect)

Even though there is flexibility, the law can still be very rigid. Lower courts are strictly bound by higher courts. If a high-ranking court made a bad or "wrong" decision fifty years ago, a lower court judge today must follow it, even if they disagree. This can lead to injustice in individual cases.

2. Undemocratic

In a democracy, we usually expect laws to be made by people we vote for (Members of Parliament). Judges are appointed, not elected. Some argue that when a judge creates a new legal rule, they are overstepping their role and taking power away from the people’s representatives. This is often linked to Constitutional Reform Act 2005 discussions regarding the separation of powers.

3. Retrospective Law (Backward-looking)

When Parliament makes a law, it usually starts from a future date. However, when a judge makes a "new" rule in a case, they apply it to the events that already happened. This means a person could find themselves on the wrong side of a law that didn't technically exist when they acted. This feels unfair to many as it lacks the certainty the law should provide.

4. Complexity and Volume

There are hundreds of thousands of cases. It is impossible for any one person to know them all. This makes judicial law making very complex. Finding the "ratio" (the legal reason) in a long, wordy judgment can be like looking for a needle in a haystack. This is much harder than simply reading a specific section of a statute.

Quick Review – Disadvantages:
• Rigidity: Bad decisions can be hard to get rid of.
• Undemocratic: Judges aren't elected by us.
• Retrospective: The "new" law applies to an old act.
• Complex: There is too much case law for people to easily understand.

Evaluating the Balance

When you are asked to assess or evaluate judicial law making, you are being asked to weigh these pros and cons. A good student will point out that while the system is undemocratic, it is necessary because Parliament cannot possibly foresee every single legal problem that might arise.

Key Comparison Table

Feature: Flexibility
Advantage: Judges can adapt law through distinguishing or the 1966 Practice Statement.
Disadvantage: The hierarchy of courts makes it hard for lower courts to fix mistakes.

Feature: Origin of Law
Advantage: Decisions are based on real facts and specific disputes.
Disadvantage: Decisions are made by unelected officials and applied retrospectively.

Memory Aid: The "C.A.R.D." Technique

To remember the problems with judicial law making, think of a bad C.A.R.D.:
• C – Complexity (Too many cases).
• A – Appointed (Undemocratic judges).
• R – Retrospective (Looking backward).
• D – Decisions (Rigid following of old decisions).

Common Mistakes to Avoid

• Confusing the roles: Don't say judges "pass bills." Only Parliament passes bills. Judges make law through precedents in judgments.
• Forgetting the Hierarchy: Remember that an advantage for a High Court judge (flexibility) might be a disadvantage for a Magistrates’ Court judge (rigidity/being bound).
• Ignoring the 1966 Practice Statement: This is a vital piece of "evidence" to show how the law stays flexible. Make sure you can name it correctly.

Key Takeaway

Judicial law making provides a detailed, practical, and fast way to develop the law. However, it sacrifices democratic accountability and can sometimes lead to complexity and unfairness because it is retrospective. The best legal system uses both Parliament and the Courts to balance these needs.