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how and why judiciary are involved in law making process
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how and why judiciary are involved in law making process in uk
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This keeps getting asked lately.
Where does the question come from? College homework? Citizenship tests?
Briefly, when Parliament frames laws, the politicians (and the civil servants who actually draft the legislation) are fully aware that they can't cover every possible situation which will come before the courts. They attempt to be as thorough as possible but there will always be some 'grey areas' which require later clarification.
When a court hears a case where the law doesn't seem to cover the exact circumstances the court has to consider, it's left to the judge to decide exactly what is, or isn't against the law or to determine how the law should be applied. So, at this point the judge (i.e. a member of the judiciary) is effectively making the finer points of the law.
A decision by a judge, in one case, can form a precedent for future cases. (i.e. if a similar set of circumstances arises again, the judge in the second case won't make his own ruling on the law; he'll abide by the decisions of the first judge).
The collection of precedents, from all cases heard before the courts, is known as case law. This is an important part of English law because a statute law (i.e. one made by Parliament) might only be a few paragraphs long but the case law relating to it may well fill hundreds of pages.
Chris
Where does the question come from? College homework? Citizenship tests?
Briefly, when Parliament frames laws, the politicians (and the civil servants who actually draft the legislation) are fully aware that they can't cover every possible situation which will come before the courts. They attempt to be as thorough as possible but there will always be some 'grey areas' which require later clarification.
When a court hears a case where the law doesn't seem to cover the exact circumstances the court has to consider, it's left to the judge to decide exactly what is, or isn't against the law or to determine how the law should be applied. So, at this point the judge (i.e. a member of the judiciary) is effectively making the finer points of the law.
A decision by a judge, in one case, can form a precedent for future cases. (i.e. if a similar set of circumstances arises again, the judge in the second case won't make his own ruling on the law; he'll abide by the decisions of the first judge).
The collection of precedents, from all cases heard before the courts, is known as case law. This is an important part of English law because a statute law (i.e. one made by Parliament) might only be a few paragraphs long but the case law relating to it may well fill hundreds of pages.
Chris
What is known as 'common law' is law which is not created by any act of parliament, but which has been created by judges over centuries. A lot of our law is the law because that's what judges decided it was and is.For example, until very recently there was no act of parliament, no statute, which said what murder was. Even now there isn't: the new law simply removed, from the common law definition, the requirement that the victim had to die within 'a year and a day' of the fatal act for it to be murder.Otherwise the definition is still that which judges themselves laid down a long time ago.
And there is the 'law of equity'. This consists of another lot of law and legal principle which was invented by judges over the years.You'll have to look that up for yourself (not enough space here).
And there is the 'law of equity'. This consists of another lot of law and legal principle which was invented by judges over the years.You'll have to look that up for yourself (not enough space here).
There is another issue which is the presence of the law lords in the house of Lords.
Frankly their presence there is somewhat contraversial as it's normally seen as a good thing to seperate those who make laws from those involved in the judiciary.
That is to the extent that many law lords tend to abstien from votes.
A notable example of conflict was the war crimes bill. This was a rare piece of retrospective legislation that was passed to make offences of things that had happened in the past. The Lords and particularly the Law Lords were violently opposed to it on principal of law.
It was eventually passed with the use of the parliament act.
Frankly their presence there is somewhat contraversial as it's normally seen as a good thing to seperate those who make laws from those involved in the judiciary.
That is to the extent that many law lords tend to abstien from votes.
A notable example of conflict was the war crimes bill. This was a rare piece of retrospective legislation that was passed to make offences of things that had happened in the past. The Lords and particularly the Law Lords were violently opposed to it on principal of law.
It was eventually passed with the use of the parliament act.
The Law Lords , the highest court of appeal within Britain, have , of course, little to do with the House of Lords, the parliamentary house.. The appellate court is 'the Judicial Committee of the House of Lords" and is comprised of senior judges or counsel and, rarely, eminent academic lawyers, who have been promoted to it.No other lords are allowed to participate in its hearings.
All the members of the judicial committee are made Lords or Ladies on appointment. Therefore individuals can take part in debates and votes on bills before the House. As Jake says, they may do so .They do not usually take part. Their input can, however, be valuable in pointing out legal or constitutional defects in bills before these bills are sent back to the Commons. Usually such comment is reserved to other senior lawyers who happen to be peers, but there's nothing in law to stop members of the Judicial Committee commenting.
All the members of the judicial committee are made Lords or Ladies on appointment. Therefore individuals can take part in debates and votes on bills before the House. As Jake says, they may do so .They do not usually take part. Their input can, however, be valuable in pointing out legal or constitutional defects in bills before these bills are sent back to the Commons. Usually such comment is reserved to other senior lawyers who happen to be peers, but there's nothing in law to stop members of the Judicial Committee commenting.
The role of the courts and the judiciary in England and Wales are that the English legal system is often referred to as a �common law� legal system. Before medieval times the law in what we now call Great Britain was largely regional. Different regional kingdoms had different law. Over time, the same law was applied by judges across the single kingdom established after 1066 and so became common to all parts of the country. This was known as �the common law�.
This means that many of our primary legal principles have been made and developed by judges (rather than by the Parliament). Where the lower courts are bound to follow principles established by the higher courts in previous cases. The common law (or judge-made law) is at least as important to us as the law made by Parliament. For example, there is no Act of Parliament telling us that murder is a crime; it is a common law crime.
Another important role played by the judiciary is that of statutory interpretation. Whilst the meaning of law in a statute should be clear and explicit, this is not always achieved. Many cases come before the courts because there is a dispute over the meaning of a word in a statute. eg, the Dangerous Dogs Act 1991 contains the phrase �any dog of the type known as the pit bull terrier� but it did not say whether �type� meant the same as �breed�. So the interpretation of a statute may depend on the judge hearing the case. Once that interpretation has been made, however, it may form a precedent for later cases.
The advantages and disadvantages of the common law system that relies heavily on rules and rule making.
The law of England and Wales has been developed over many centuries. Historically, most important influences were local customs and judges. As Parliament became more powerful in the eighteenth century, statutes became a main source of new laws.
� The Open University 19:22 Sat 01st Mar 2008
This means that many of our primary legal principles have been made and developed by judges (rather than by the Parliament). Where the lower courts are bound to follow principles established by the higher courts in previous cases. The common law (or judge-made law) is at least as important to us as the law made by Parliament. For example, there is no Act of Parliament telling us that murder is a crime; it is a common law crime.
Another important role played by the judiciary is that of statutory interpretation. Whilst the meaning of law in a statute should be clear and explicit, this is not always achieved. Many cases come before the courts because there is a dispute over the meaning of a word in a statute. eg, the Dangerous Dogs Act 1991 contains the phrase �any dog of the type known as the pit bull terrier� but it did not say whether �type� meant the same as �breed�. So the interpretation of a statute may depend on the judge hearing the case. Once that interpretation has been made, however, it may form a precedent for later cases.
The advantages and disadvantages of the common law system that relies heavily on rules and rule making.
The law of England and Wales has been developed over many centuries. Historically, most important influences were local customs and judges. As Parliament became more powerful in the eighteenth century, statutes became a main source of new laws.
� The Open University 19:22 Sat 01st Mar 2008
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