Do Judges Make the Law or Find it Essay Example | Topics and Well Written Essays - 2000 words

Do Judges Make the Law or Find it - Essay ExampleAn older dimension of the ideology that judges do not pull back uprightness is captured in saying that judges happen or decl atomic number 18 justice but do not make it.2 The question of whether judges make constabulary or find and the arguments relating to this question is hinged on the billets of the three major organs of the government the decision maker, judiciary, and legislature. It is argued that the legislative classify of the government has the mandate of creating the fairness.3 Nonetheless, it is true that the executive branch undersurface make the law through executive orders which operate as law, and so can the judiciary branch make the law. While it is generally known that the judiciary is mandated to ascertain law, it has over the long time asserted its authority and has established itself as an equal branch of the government that can make law.4 slipperiness law is a common example of the law that is created b y the court system or the judiciary. campaign law can be defined as the sum of body of cases that creates a body of law or jurisprudence on a certain subject distinct from legislations and other sources of law. Case laws interpret regulations, constitutional provisions, and statutes. Strasbourg jurisprudence recognized the powers of the courts to make laws.5 In R v Governor of HMP Brockhill Ex parte Evans (2000), it was held that change surface in the criminal law, the domestic courts can develop law through legal interpretation of a case or more.6 So, are judges really law makers or are merely law finders? The fact that the main role of the judges is to interpret and apply existing law in a particular case is undisputable. Therefore, judges are supposed to find any existing law that is applicable to a case at hand and apply it to make legal decisions. In this case it can be said that judges are law finders rather than being law makers because they have to find law.7 The doctrin e of separation of powers stipulates that each branch of the government should not interfere with the mandate and roles of the other branch and each branch should be allowed to operate independently. In this respect, the court system should interfere with the legislatures role of making the law.8 Instead, it should preoccupy itself with the role of interpreting the law. However, it is an appreciated fact within the legal confederation that the legal system is dynamic and keeps on developing and so does the role of the judges. As such, it is expected that the role of the judges should not be confined only to finding laws and applying them, but rather to make law where necessary and leave their own legal imprint in the legal system.9 In common law countries, the case law left behind by the judges is used in applying to other cases that meet to the previous ones based on the doctrine of judicial precedent. It has been argued to a greater extent that the doctrine of judicial precedent is an indirect way in which judges make law.10 In common law countries and egalitarian states, the role of judges is perceived to be active and creative rather than passive. This explains why they have a special place in the judiciary branch of government. Apart from being expected to interpret the law, they are also expected to contribute towards the growth of the legal system of their countries through their knowledge, skills, experience, and creativity.11 Whereas the