There are two ways in which judges can formulate and interpret legal rules: Judicial Precedent and Statutory Interpretation.
A judicial precedent is a decision of the court used as a source for future decision making. This is known as Stare Decisis which means to stand upon decisions, and this means that precedents are authoritative and binding and must be followed. This means that a decision made by the Supreme Court will have to be followed by the courts beneath it, i.e. The Court of Appeal, The Crown court and The Magistrate’s Court. However the court that made the precedent is not always bound by it. Statutory Interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is necessary when a case involves a statute. Sometimes the words of the statute have a plain straightforward meaning, sometimes they are more ambiguous.
It can be said that Judges have too much power in terms of making law, and deciding what parliament meant when they made certain statues. Lord Denning gave a lecture in 1952 called The Need for a New Equity arguing that judges had become too timid about adapting the law to the changing conditions of society. He said they were leaving this role too much to parliament, which could not keep up with the work. Lord Denning was stating that Judges should have more power when it comes to Law making. He was pointing out the good sides of Judicial Precedent that made Law making easier for all of the systems. It is convenient for time saving. If a problem has already been solved then it is only natural to reach the same conclusion. It has a greater certainty in the law. It prevents injustice as it allows people that have similar cases to be confident in their outcome. It offers the opportunity to develop the law as Judges will have a different perspective to that of normal members of Parliament. They can lay down new principles and extend old ones. However Judicial Precedent does not only contain good qualities, it has many negative aspects that can show why it is criticised so much. There are a lot of precedents, one could argue that there are too many, and because of this that it would be hard to apply Stare Decisis because it would be difficult to select a case to use. It may cause injustice. Sometimes the overruling of a particular case may cause those that relied on the case to be treated unfairly, only because they are bound to do so. Also it can be very confusing as one, there are many precedents one must first study and learn about and two, they would need to adapt and figure out when to apply a particular precedent to a certain case. Judicial precedent also restricts law making developments as law is generally made through practical experience yet this is stopped due to the restriction first-case binding has on the courts. Balfour v Balfour was a precedent case. It was about a man husband who promised to pay his wife £30 a month while she remained in England and he worked abroad. Their marriage broke down and the wife brought an action to reclaim money she claimed her husband owed her. This case was distinguished by Lord Denning in the Merrit v Merrit case in 1970. The use of Balfour v Balfour stated that a spouse cannot sue another spouse.
Judges making law through this method is very controversial for a number of reasons. They are meant to interpret the law and apply it, but Precedent gives them the power to first make a law, then interpret and apply it. It takes away some respect towards parliamentary sovereignty as they are making laws that suit them and the cases they deal with in particular. Also judges are not elected, they are assigned. They are put in particular courts to do a certain job, not to make laws. Precedent gives judges power that they have not earned from the public, like elected Members of Parliament. However having judges make law through this…