Positives and Negatives of Judicial Creativity (6)

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  • Judges are not elected, nor are they representative of society as a whole. Senior ranks of the judiciary remain pre-dominantly while, middle aged males
    • Negatives to Judicial Creativity
      • Members of Parliament are chosen by the public and so we as a society accept their role in the legal system but when judges make their own law we lack understanding and accountability as to their actions
      • Judges are often pressurised into making hasty decisions, compared to parliament who have had time to properly consider why something should be law
        • E.g in Re S a pregnant women was forced into having a Caesarean Section and it was later found that the women's right were paramount, but it was too late for the decision to be changed.
  • Benefits to Judicial Creativity
    • It provides flexibility as appropriate precedents may be followed and others can be distinguished or overruled (BRB v Herrington) this allows for the correct decision to be made
    • Practical solutions are provided for real life situations e.g. R v R when a solution was provided instantly to the problem of the law on marital **** that had been festering for many years
    • Judges are able to address problems created by advances in technology which allows for the law to be modern and coincide with existing circumstances (Royal College of Nursing v DHSS), this also helps to fulfil parliaments intention


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