Do judges make law or merely
However the creative role of judges does not mean that judges made the law in the same sense in which legislature make it.
They chose. New situations develop and the law has to be interpreted for the purpose of application to them. Now, is there then not a difference between Hercules's view of what morality requires and of what the law requires? But can his conclusion that principles eliminate all indeterminacies be validly drawn?
This is fundamentally different from the position of Hercules who must decide for himself which body of principles provides the best justification for the established laws.
Should judges make law
In the exercise of their law-making power the courts should- within the legally imposed restrictions act by adopting the best rules they can find. This is fundamentally different from the position of Hercules who must decide for himself which body of principles provides the best justification for the established laws. Chief Justice Stonore broke in: "No; law is that which is right". Courts in developing the law do not give expression to their personal views, nor do they reflect external social or political forces. This reasoning involves the sensitive matter of identification and weighing of diverse considerations. Dworkin seems to suggest not only that principles eliminate some indeterminacies in the law but also that they eliminate all indeterminacies, for he rejects entirely the idea of judicial discretion. Dworkin does not deny the need for weak discretion but he denies the existence of strong judicial discretion. The law is a seamless web in which there will always be a right answer. Judges play both functions of making and declaring the law. But according to Dworkin, principles are essential elements in deciding these types of hard cases. What has been pointed out by the author raises non-trivial philosophical issues that Dworkin must face since he must take a stand on the ontological nature of moral truth; and it would seem that Dworkin's theory of what is law can only work if moral truth is objective. Furthermore I will also discuss the different stages which are involved in creating a law. In general, principles are identified by showing that they are embedded in the established rules and decisions, in the sense that the principle provides a suitable justification for the black-letter rules. Union of India Shriram - Oleum Gas the court said that with the development and fast changing society the law cannot remain static and that the law has to develop its own new principles. Contact Us Search For long it has been the received opinion that judges filled in the gaps left by rules by using their discretion.
However, he will defer to the opinion of the legislature when he thinks that the issue is one of policy rather than principle. The court does evolve new principles.
Do judges make law jurisprudence
A judge may make law where there is no statute or statutory provision on the issue before him because no judge can refuse to give a decision in case only because there is no law in hand. The Supreme Court has both original and appellate jurisdiction. The ethical dilemma arose because the company had to compromise other factors and make a decision of firing Andrew based on others requests. They argued that judges did make law. Hart must claim, according to Dworkin, that laws are identified by pedigree and not by content, that is, a rule counts as law not because it is just or fair a matter of its content but because it has been laid down in a statute or established in a case a matter of source or pedigree. It is said that judges make new law or so-called creative especially in two fields: 1. They term it as judge- made laws. The first argues that elected representatives who are responsible to the people should govern a community and when judges make law it will be an encroachment on legislative power.
Dworkin says that constructing such a theory is inevitably a controversial matter involving complex issues of moral and political theory. Even though if they make new law, it is in accordance with principles or underpinning, reasons recognized as already have a footing in the existing law.
Can courts make laws
In these circumstances, judges can be said to be formulating original precedent. The point of divide between Dworkin and positivists is whether there are any necessary connections between law and morals viz. Further, they must have determinable weights. Rules derive their meaning from principles. Legal principles are not identified by their pedigree in that it is not necessary that a principle should have been laid down in a statute or a case. Tenderden CJ, emphasized that the decision of predecessors ought to be followed unless is erroneous2. Adjudication can rarely be seen as a mechanical logical deduction from general premises. If the parliament fails to act, the judges made law will of necessity though a gradual and uncertain process provides a legal answer to each new question as it arises. And in case if there is any arbitrariness then legislature is always there to negate it down. But is it incompatible with Hart's theory of the rule of recognition? He may perhaps treat a couple of them as mistakes but he cannot reject the entire body of rules, and therefore he will have to link the binding nature of contracts to the existence of consideration. In response to this objection, Dworkin asserts that Hart's theory of the rule of recognition does not simply claim that there is a criterion distinguishing law from non-law. Dworkin does not deny the need for weak discretion but he denies the existence of strong judicial discretion.
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