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. [...]
[...] Llewellyn and the Realist Movement, London, (1973) Harold Lasswell, Politics: Gets What When, How', New York, Meridian Books, (1958) "Negative and Positive Positivism," 11 Journal of Legal Studies 139 (1982) Positivism and Fidelity to Law--A Reply to Professor Hart," 71 Harvard Law Review 630, (1958) "Positivism and the Separation of Law and Morals," 71 Harvard Law Review 593, (1958) Lord Denning - Misuse of Power, The Richard Dimbleby Lecture (1980) International Journal for the Semiotics of Law WEBSITES www.westlaw.co.uk www.butterworths.co.uk www.infolaw.co.uk www.venables.co.uk http://www.utm.edu/research/iep/n/natlaw.htm http://www.legaltheory.demon.co.uk/default.html http://library.ukc.ac.uk/library/lawlinks/ http://www.ilrg.com/nations/uk/ www.law.ox.ac.uk/jurisprudence/ Lord Denning - Misuse of Power - The Richard Dimbleby Lecture 1980 (www.BBC.co.uk) (1983) 1 AC 410 Simon Lee, Judging Judges, Faber & Faber page 25 This is because there are significant differences between the five judgments regarding their views on the proper role of policy Law's Empire, London, Fontana pp Ibid, pp. [...]
[...] However, Dworkin believes that propositions of law are true if they figure in or follow from the principles of justice, fairness and procedural due process that provide the best constructive interpretation of the community's legal practice' Therefore, in McLoughlin v O'Brian deciding whether the plaintiff should recover involves deciding whether legal practice is seen in a ‘better light' if we assume the community has accepted the principle that people in her position are entitled to receive compensation. In other words, in Dworkin's vision of as integrity', a judge must think of himself not (as the conventionalist would have it) as giving voice to his own moral or political convictions, or even to those convictions which he believes the legislature or the majority of the electorate would approve. [...]
[...] It is apparent that the judges and their decisions are political in the following senses: that courts are political institutions and a political role is played by the judges; ‘their decisions make a difference to the allocation of power, liberty, and resources in society' and this issue of politics has been described as gets what, when and how'; and they are also ‘involved directly in political interaction with others'. However, the controversy that arises around judicial politics is concerned with: whether judges are biased; whether they are attempting to impose their own moral values; or is their aim to protect their own political position or possibly that of their friends. [...]
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