Do_Judges_Make_Laws

Judge made law is the reported decisions of selected appellate and other courts (called courts of first impression) which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis. These interpretations are distinguished from statutory law which are the statutes and codes enacted by legislative bodies; regulatory law which are regulations established by governmental agencies based on statutes; and in some states, common law which are the generally accepted laws carried from England. The rulings resulting from trials and hearings which are not selected as 'courts of first impression In the common law tradition, courts decide the law applicable to a case by interpreting statutes and applying precedents which record how and why prior cases have been decided. Unlike most civil law systems, common law systems follow the doctrine of stare decisis, by which most courts are bound by their own previous decisions in similar cases, and all lower courts should make decisions consistent with previous decisions of higher courts. For example, in England, the High Court and the Court of Appeal are each bound by their own previous decisions, but neither the County Courts nor the Supreme Court of the United Kingdom. Generally speaking, higher courts do not have direct oversight over the lower courts of record, in that they cannot reach out on their own initiative (sua sponte) at any time to overrule judgments of the lower courts. Normally, the burden rests with litigants to appeal rulings (including those in clear violation of established case law) to the higher courts. If a judge acts against precedent and the case is not appealed, the decision will stand. This may occur more frequently than has been documented, as an appeal is usually quite expensive and difficult to make. A lower court may not rule against a binding precedent, even if it feels that it is unjust; it may only express the hope that a higher court or the legislature will reform the rule in question. If the court believes that developments or trends in legal reasoning render the precedent unhelpful, and wishes to evade it and help the law evolve, it may either hold that the precedent is inconsistent with subsequent authority, or that it should be distinguished by some material difference between the facts of the cases. If that judgment goes to appeal, the appellate court will have the opportunity to review both the precedent and the case under appeal, perhaps overruling the previous case law by setting a new precedent of higher authority. This may happen several times as the case works its way through successive appeals. Lord Denning, first of the High Court of Justice, later of the Court of Appeal, provided a famous example of this evolutionary process in his development of the concept of estoppel starting in the High Trees case: Central London Property Trust Ltd v. High Trees House Ltd [1947] K.B. 130. In 1937 the plaintiffs granted to the defendants lease of 99 years of a new block of flats at a rent of Pst 2,500 per annum. The lease was under seal. During the period of war the flats were by no means fully let owing to absence of people from the London area. The defendant company, which was a subsidiary of the plaintiff company, realized that it could not meet the rent out of the profits, then being made on the flats, and in 1940 the parties entered into an agreement that reduced the rent to Pst 1250 per annum; this agreement was put into writing but not under seal. The defendants continued to pay the reduced rent thereafter. In September, 1945, the receiver then brought this friendly action to establish the legal position. He claimed Pst 625, being the difference in rent for the two quarters ending 29th September and 25th December, 1945. It was held that a simple contract can in equity vary a deed, though it had not done so here because the simple contract was not supported any consideration. It was also held that as the agreement for the reduction of rent had been acted upon by the defendants, the plaintiffs were estopped in equity from claiming full rent from 1941 until early 1945 when the flats were fully let. After that time they were entitled to do so because the second agreement was only operative during the continuance of the conditions which gave raise to it. This extent the limited claim of the receiver succeeded. Precedent that must be applied or followed is known as binding precedent (alternately mandatory precedent, mandatory or binding authority, etc.). Under the doctrine of stare decisis, a lower court must honor findings of law made by a higher court that is within the appeals path of cases the court hears. All appellate courts fall under a highest court (sometimes but not always called a "supreme court"). By definition, decisions of lower courts are not binding on courts higher in the system, nor are appeals court decisions binding on local courts that fall under a different appeals court. Further, courts must follow their own proclamations of law made earlier on other cases, and honor rulings made by other courts in disputes among the parties. Given a determination as to the governing jurisdiction, a court is "bound" to follow a precedent of that jurisdiction only if it is directly in point. In the strongest sense, "directly in point" means that: (1) the question resolved in the precedent case is the same as the question to be resolved in the pending case, (2) resolution of that question was necessary to the disposition of the precedent case; (3) the significant facts of the precedent case are also present in the pending case, and (4) no additional facts appear in the pending case that might be treated as significant. before them pertaining to the same pattern of facts or events, unless they have a strong reason to change these rulings. Precedent that is not mandatory but which is useful or relevant is known as persuasive precedent (or persuasive authority or advisory precedent). Persuasive precedent includes cases decided by lower courts, by peer or higher courts from other geographic jurisdictions, cases made in other parallel systems (for example, military courts, administrative courts, indigenous/tribal courts) and in some exceptional circumstances, cases of other nations, treaties, world judicial bodies, etc. In order to understand the term Precedent we have to understand and define stare decisis. Stare decisis is the legal principle by which judges are obliged to obey the set-up precedents established by prior decisions. The words originate from the Latin phrase Stare decisis et non quieta movere, "Maintain what has been decided and do not alter that which has been established". Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi — "to keep to the rationes decidendi of past cases." Rather, under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.[1] In other words, stare decisis applies to the holding of a case, rather than to obiter dicta ("things said by the way"). As the United States Supreme Court has put it: "dicta may be followed if sufficiently persuasive but are not binding." The principle of stare decisis can be divided into two components. The first is the rule that a decision made by a superior court is binding precedent (also known as mandatory authority) which an inferior court cannot change. The second is the principle that a court should not overturn its own precedents unless there is a strong reason to do so and should be guided by principles from lateral and inferior courts. The second principle, regarding persuasive precedent, is an advisory one which courts can and does ignore occasionally. Generally, a common law court system has trial courts, intermediate appellate courts and a supreme court. The inferior courts conduct almost all trial proceedings. The inferior courts are bound to obey precedents established by the appellate court for their jurisdiction, and all Supreme Court precedent. Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no sense. Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court. Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court. There is much discussion about the virtue or irrationality of using case law in the context of stare decisis. Supporters of the system, such as minimalists, argue that obeying precedent makes decisions "predictable." For example, a business person can be reasonably assured of predicting a decision where the facts of his or her case are sufficiently similar to a case decided previously. However, critics arguethat stare decisis is an application of the argument from authority logical fallacy and can result in the preservation and propagation of cases decided wrongly. Another argument often used against the system is that it is undemocratic as it allows unelected judges to make law. A counter-argument (in favor of the concept of stare decisis) is that if the legislature wishes to alter the case law (other than constitutional interpretations) by statute, the legislature is empowered to do so. Critics sometimes accuse particular judges of applying the doctrine selectively, invoking it to support precedents which the judge supported anyway, but ignoring it in order to change precedents with which the judge disagreed. Regarding constitutional interpretations, there is concern that over-reliance on the doctrine of stare decisis can be subversive. An erroneous precedent may at first be only slightly inconsistent with the Constitution, and then this error in interpretation can be propagated and increased by further precedents until a result is obtained that is greatly different from the original understanding of the Constitution. Stare decisis is not mandated by the Constitution, and if it causes unconstitutional results then the historical evidence of original understanding can be re-examined. In this opinion, predictable fidelity to the Constitution is more important than fidelity to unconstitutional precedents. The merits and demerits of Judge made law are outlined below: • Convenient timesaving device. If a problem has already answer and been solved it is natural to reach the same conclusion. • Greater certainty in the law. Is perhaps the most important advantage claimed for the doctrine of judicial precedent. It may also allow persons generally to order their affairs and come to settlements with a certain amount of confidence. • Prevents injustice. The doctrine of precedent may serve the interests of justice. It would be unjust to reach a different decision in a following case. • Offers opportunity to develop the law. The making of law in decided cases offers opportunities for growth and legal development, which could not be provided by Parliament. The courts can more quickly lay down new principles, or extend old principles, to meet novel circumstances. There has built up over the centuries a wealth of cases illustrative of a vast number of the principles of English law. The cases exemplify the law in the sort of detail that could not be achieved in a long code of the Continental type. However, therein lies another weakness of case law. Its very bulk and complexity make it increasingly difficult to find the law. • Flexible. The case-law method is sometimes said to be flexible. A judge is not so free where there is a binding precedent. Unless it can be distinguished he must follow it, even though he dislikes it or considers it bad law. His discretion is thereby limited and the alleged flexibility of case law becomes rigidity. • Ensures impartiality of judge. The interests of justice also demand impartiality from the judge. This may be assured by the existence of a binding precedent, which he must follow unless it is distinguishable. If he tries to distinguish an indistinguishable However the demerits are as followed; • Can become thoughtless. The convenience of following precedent should not be allowed to degenerate into a mere mechanical exercise performed without any thought. • Too many precedents. The citation of authority in court should be kept within reasonable bounds because it can be costly in terms of time and money. Lord Diplock has warned of the 'danger of so blinding the court with case law that it has difficulty in seeing the wood of legal principle for the trees of paraphrase' The House of Lords has decided that it will not allow transcripts of unreported judgments of the Court of Appeal, civil division, to be cited before the House except with its leave. • Mistakes perpetuated. Judicial mistakes of the past are perpetuated unless bad decisions happen to come before the House of Lords for reconsideration. In any event, flexibility and certainty are incompatible features of judge-made law. A system that was truly flexible could not at the same time be certain because no one can predict when and how legal development will take place. • Too confusing. However, the advantage of certainty is lost where there are too many cases or they are too confusing. • Causes injustice. The overruling of an earlier case may cause injustice to those who have ordered their affairs in reliance on it. Precedent may produce justice in the individual case but injustice in the generality of cases. It would be undesirable to treat a number of claimants unjustly simply because one binding case had laid down an unjust rule. In conclusion only judges can exercise judicial power. Judicial power involves making binding decisions, affecting the rights and duties of people and institutions, by reference of the existing law. Existing law is found in legislation, judicial decisions, state constitutions and common law. In applying any of these sources of law, judges make law to a limited degree KAMPALA INTERNATIONAL UNIVERSITY FACULTY OF LAW COURSEWORK NAME: LUBEGA DANIEL WEMBABAZI COURSE: BACHELOR OF LAWS REG NO: LLB/43065/92/DU COURSE UNIT: INTRODUCING LAW LECTURER: MR. HIMBAZA G QN: DO JUDGES MAKE LAWS' WHAT ARE THE ADVANTAGES AND DISADVANTAGES OF JUDGE MADE LAW'