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A paper examining the controversy that surrounds the question of what Judges are doing when they are deciding cases

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Paul B.
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  1. Introduction
  2. Judges as law-makers
  3. The significance of attack on conventionalism
  4. The Greater London Council's resolution in the Labor party manifesto
  5. A study of the Transport London act
  6. Bibliography
  7. Conclusion

If we accept the hypothesis, that judges do indeed make law through their decisions, we need to look closely at the judges themselves to decide whether they are capable of performing that function. Judges are not, in this country, elected, as are the other law-makers (the legislators). If judges had no law-making role, then the uncertainty over judicial decision making would not arise; it would not matter whether the judiciary was representative of the society within which it operates, or whether it was capable of acting impartially. Lord Denning stated that: "Every judge on his appointment discards all politics and all prejudices. You need have no fear. The Judges of England have always in the past - and always will - be vigilant in guarding our freedoms. Someone must be trusted. Let it be the Judges."

[...] John Griffith complains that judges are too ready to support the status quo, and that may be so, but perhaps such a tendency is no bad thing if that attitude, coupled with a binding system of precedent, prevents judicial radicalism and ensures that changes to the law other than incremental developments, are left to the legislature. Having said that, courts must make decisions that no-one else can or will make, and these decisions will represent significant choices for the community. [...]


[...] What is initially striking about these propositions is that in a sense they are obviously true, but that they do not deny that rules play some part in adjudication - and leave as the central unaddressed problems: what part do rules play and what are rules anyway? These positions of Realism are what Hart distinguished his position from, while seeking to preserve the incompleteness of rules, and they are also explicitly positions Dworkin needs to oppose while rejecting an account of law in terms of rules alone. [...]


[...] Firstly, discretion will be required when the case in question does not fall within the core of certainty of meaning, but within a penumbra, for example, we all agree that a car is a vehicle, but is a skateboard a vehicle?[21] Secondly, discretion will be required where the rule employs very general standards, such as, ?reasonable' or ?equitable'. There are clear cases where the standard applies and where it does not, but there will be many cases of uncertainty. Discretion will also be required where decisions are based upon precedents. [...]

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