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A discussion concerning the belief that ’Judges do not make law - they only declare it’

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Paul B.
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  1. Introduction
  2. Function of a judge in a legal system
  3. Theories on the role of a judge
  4. Some case studies
  5. Conclusion

The function of a judge in any legal system remains a true phenomenon even today. Barristers, solicitors, law students and the general public often question the precise role of a judge ? puzzled over whether judges are authoritarian law-makers, or if their profession makes them mere declarers or announcers of the law. Various valid opposing arguments exist in this on-going debate; authors, solicitors, professors, and prominent legal thinkers from earlier centuries have, on many occasions, stated their own views ensuring that either end of the argument is just as plausible as the other. In this essay I will consider a number of examples and cases which suggest that the statement is in fact valid. I will also review a number of specific cases where there is convincing evidence that the statement is incorrect and where new laws have indeed been made by judges.

[...] This idea is reiterated in Professor Diane Birch's article, Better Deal For Vulnerable Witnesses??[14] where she concisely states that, .along with the complainant's other sexual doings, the remainder of the history of any sexual relationship the complainant has had with the accused will, it seems, have to be concealed from the jury or magistrates.? The belief that judges can only ever ?declare' the law is also apparent in Section 42 of the Youth Justice and Criminal Evidence Act 1999 where the entire section is dedicated to explaining a precise method of interpreting and applying the rules and guidelines established in Section 41. [...]


[...] A recent case which also supports the statement that, ?judges do not make law, they only declare is the House of Lords case, R v A (2001), which concerns the rights issued in a statute of the complainant in a rape case. In this case the defendant appealed to the House of Lords declaring his own statement of defense after the complainant took her case to court. He argued that the act of sexual intercourse between himself and the complainant wasn't forced, and rather that it was entirely under her consent. [...]


[...] R V R is a case which essentially highlights the importance of a judge he/she is the only person with the power to oversee issues regarding whether the law is ?fair' and whether it provides justice for the complainant. Judges fulfill a judicial oath whereby they swear to, do right to all manner of people after the laws and usages of this realm'[20]; bearing this in mind, it is clear that judges DO occasionally have to amend or change laws. Therefore, as a judge moves up the legal hierarchy for example, to ?hard cases' a judge will have to look to alternative solutions in amending the dispute. [...]

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