Law + Judicial Creativity

1) Intro

common law is created through the doctrine of precedent. There are many feature of judicial precedent which enable the system to work effectively. Some allow judges to show creativity and develop common law, however some restrict this.

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2) Features that limit creativity

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3) Features that aid creativity

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4) Statutory interpretation used when interpreting

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5) Judges should create law

1. Practical - deal with cases immefiately, have no choise than to be creative if leagl problems arise.

2. Reflects social change - Cases that are too rigid fail to meet society's changing needs.

3. Flexible - Judges can address technological improvements (Evans - IVF)

4. Considers each case in detail - Parliament cannot reform OAPA so judges interpret the old act to meed social needs - psyciatric harm now injury as well as transmission of disease (Dica HIV)

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6) Judges shouldn't create law

1. Parliamentary Supremacy - Ronald Dworkin 'policy issues left to parliament, issues which are controversial and what people vote for MP's on.

2. Not elected - Undemocratic to allow judges to make law.

3. No consultation - Parliament have huge resorses, large debates and extensive research, judges are guessing what parliament intend.

4. Reactive - Courts only make law when it arises in a case. Areas remain untouched.

5. Hasty decisions - judges under pressure that MP's are not. Have to make a decision in the case. Public policy issues risk being rushed and the law decided incorrectly

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