LAW

West Law and Lexis



West Law and Lexis

Introduction

It has been a long standing debate that whether the judges create the law. There has been an immense discussion from judges and jurists of the twentieth century such as Lord Reid, Devlin and others from the Anglo-American about the present legal system. The major perception as described by David Kairy's is that law is separate and above politics, economics, culture, values and preferences of judges. There are particular attributes in the decision making process which recognize the judicial recognition and their role in accordance with their constitutional theories. This paper will demonstrate whether the judges make the law and how much they make use of reasoning.

Discussion

The controversy arises in the relationship of law and logic and the actual reasons for the outcomes that arise from logical processes. The lawyers often reject the logical reasoning and are often in favour of flexibility and will. The American Supreme court judge declared that the life of law has not been judged by legal realism but more with experience. This type of mechanism helps in solving issues and judges must function in a way as to ensure the best possible outcome. Mostly, judges justify their legal position as working according to formal rules of law which is mainly following that law is the law and it must take its course. The idea behind the declaratory theory of law is that the judge is not the voice of the legal system. Although, his decisions may be influenced by the legal training he obtained by the system they will not get influenced by any other factor. Therefore, if the declaratory theory of law exists than judges give more than the existing principles and rules. Thus, views and opinions are of absolutely no legal consequence in declaratory theory of law. The accuracy and logical conclusion if was applicable in all the cases than the judge could be easily replaced by computers. This way expert computer system could be programmed to make decisions according to application of general rules in a given condition. Such a straight forward application of legal rules may lead to injustice and wrong decision.

There are certain complicated cases which are decided on the basis of judicial reaction after looking at the facts. However, such a scenario is completely negative to the declaratory theory of law. Similarly, some jurists and judges are of the opposing views that judges are creative and make the laws. There are two laws that actually work in the judicial process which is one declaratory and the other one is creative.

In judicial precedent, the judges are supposed to follow the cases which were decided in the past. The cases in which the laws and facts were quite similar are the ones which involve three principals. The stare decisi is the fact which says that lower courts that apply those legal principles which are decided by the higher courts. The obligatory part of a previous decision is known as ratio decidendi which shows the ...