Do judges make law essay

To create new laws a Bill a draft Act is debated in Parliament.


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If it is passed by a majority in both houses of Parliament it becomes an Act. Victorian Acts apply to people living in Victoria and to courts and judges in Victoria. Commonwealth Acts apply to the whole of Australia and to federal courts and judges. Some Acts may outline broad guidelines or principles but leave the detail to be defined in regulations, rules or local laws.

Judges and the law

See the Parliament of Victoria website for detailed information about how Parliament makes laws. At the same time, however, it does not eliminate the scope for applying tests that are not tests solely of pedigree. It is reiterated that just because qualification by virtue of "content" need not occur in Hart's theory, it does not necessarily entail that such qualification cannot occur or does not occur when the judges engage in moral reasoning.

Now if we turn our attention on the doctrine of judicial discretion. Dworkin seems to suggest not only that principles eliminate some indeterminacies in the law but also that they eliminate all indeterminacies, for he rejects entirely the idea of judicial discretion. He appears to assume that anyone who accepts the idea of judicial discretion cannot acknowledge the existence of legal principles at all, or must hold that principles cannot eliminate uncertainties because they are to be weighed against each other.

Introduction to common law - can judges make law?

But can his conclusion that principles eliminate all indeterminacies be validly drawn? The author feels that the answer can only be in the negative. In order to eliminate all indeterminacies in the law, principles must cover all cases that might arise.

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The legal imagination

Further, they must have determinable weights. Thirdly, the balancing process in which principles are weighed against each other must never yield an equal weight to conflicting principles on either side of a legal question. It is only when all these conditions are satisfied that we can countenance the total rejection of judicial discretion. There is no reason why one cannot acknowledge the existence of legal principles without believing that such principles eliminate all indeterminacies and with them any occasion for the exercise of judicial discretion.


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One last point about Dworkin's critique of positivism: let us suppose that his judge Hercules is faced with a hard case on contract. Judge-made law — known as common law — is law that has developed from judgments handed down in court.

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It is most often used to make decisions about areas that are not included in Acts of Parliament. Judges are also required to interpret legislation if there is a dispute about the meaning or how to apply an Act in a case.

Why Judges Make the Law: The Roots and Remedy of Judicial Imperialism: Pearcey, Nancy

These interpretations then become part of the common law. Find out how you can get help with courts and the legal system. Skip to the content.