EKIA
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How could I answer this (in a basic summary). Thank you in advance

Edit: by basic summary, I mean a basic summary of what the whole thing means haha.
Last edited by EKIA; 4 months ago
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mathsboy01
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(Original post by EKIA)
“No one can tell what the law is until the courts decide it. The judges do every day make law, though it is almost heresy to say so.”
Lord Justice Denning, ‘Reform of Equity’ in C. Hamson and others (eds), Law Reform and Law Making: A Reprint of a Series of Broadcast Talks (Heffer, 1953), at 31.



“The law is developed by the application of old principles to new circumstances. Therein lies its genius.”
Viscount Simonds in Midland Silicones Ltd v Scruttons Ltd. [1962] AC 446, 467-468



Can both judges be right? Why?


How could I answer this (in a basic summary). Thank you in advance

Edit: by basic summary, I mean a basic summary of what the whole thing means haha.
It means that the court system is in place to establish new laws, then the judges (high court judge for example) can decide it in the various courts if it is a new circumstance. And common law that judges make is not always binding (it can be re-applied in new circumstances) or appealed to a higher court.

Then the second quote seems to suggest that old rules of law (such as those found in jurisprudence) can be applied to the latest case.

So there seems to be a relationship between the court system and Viscount Simonds's quote.

edit:
The quote basically shows that parliament can create laws and it is unto the judges to enforce them (it is based on the Denning quote). If you're still doing a levels, it means that judges fill in the gaps (by interpreting and analysing the law) such as a particular statute. This is how they are creative.

1. In the development of the Common Law
e.g. Donoghue V Stephenson: Judge made law. It is known as Case Law. To ensure fairness the Court of Appeal can set law and this does in fact become law based on the bespoke circumstances.
2. In the interpretation of Statutes
e.g. Parliament makes the law in the form of statutes and this becomes the laws we must abide. The courts have some power to re-define the statutes to ensure they meet the need of the case as ambiguity may arise.

I found this quote link to quote:

“The law is developed by the application of old principles to new circumstances. Therein lies its genius.”


In this movement from principles to pragmatism and realism, there is the justification of an active role for judges in order to keep the law relevant to the needs of society.

Liberties guaranteed under Constitution should be protected not only individually but also collectively such as where there is a violation of liberties concerning a group or class of citizens. The judiciary has come to occupy the position of an arbitrator between government and people, with regard to public and private rights. The scope of judiciary law has expanded enormously during the past decade in various parts of the world. And one continually remains of the assertion of the International Commission of Jurists after the Lagos Conference in 1961 that the rule of law embraces those institutions and principles of justice, which are considered minimal to the assurance of human rights and the dignity of man.

Judicial activism now appears to be a prominent feature of many political systems that vest adjudicatory power in an independent judiciary. The scope of judicial varies, however, from one country to another. Where the Courts have been given the power of judicial review of administrative discretion and the legislative action, judicial activism emerges with great eminence. The point I wish to emphasize is that judicial activism is an inseparable feature of the judicial process in democratic settings and a very relevant question arises as to what should be the scope of judicial activism permissible to a judge.

Judicial activism has assumed several forms. In some settings, the judges have been given the discretion to choose alternative courses of action. Certain other settings have what is known as ‘technical activists’. It gives a free choice to the judges to have recourse to action to a wide range of techniques and choices. It is concerned with keeping jurists techniques open-ended. And there is a shift from formalism; judicial activism operates as a device for achieving social justice.

So it would seem there is some similarity between the fact judges can have power of the outcome of a case. Both judges can be right.
Last edited by mathsboy01; 4 months ago
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EKIA
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(Original post by vetmed112)
It means that the court system is in place to establish new laws, then the judges (high court judge for example) can decide it in the various courts if it is a new circumstance. And common law that judges make is not always binding (it can be re-applied in new circumstances) or appealed to a higher court.

Then the second quote seems to suggest that old rules of law (such as those found in jurisprudence) can be applied to the latest case.

So there seems to be a relationship between the court system and Viscount Simonds's quote.

edit:
The quote basically shows that parliament can create laws and it is unto the judges to enforce them (it is based on the Denning quote). If you're still doing a levels, it means that judges fill in the gaps (by interpreting and analysing the law) such as a particular statute. This is how they are creative.

1. In the development of the Common Law
e.g. Donoghue V Stephenson: Judge made law. It is known as Case Law. To ensure fairness the Court of Appeal can set law and this does in fact become law based on the bespoke circumstances.
2. In the interpretation of Statutes
e.g. Parliament makes the law in the form of statutes and this becomes the laws we must abide. The courts have some power to re-define the statutes to ensure they meet the need of the case as ambiguity may arise.

I found this quote link to quote:

“The law is developed by the application of old principles to new circumstances. Therein lies its genius.”


In this movement from principles to pragmatism and realism, there is the justification of an active role for judges in order to keep the law relevant to the needs of society.

Liberties guaranteed under Constitution should be protected not only individually but also collectively such as where there is a violation of liberties concerning a group or class of citizens. The judiciary has come to occupy the position of an arbitrator between government and people, with regard to public and private rights. The scope of judiciary law has expanded enormously during the past decade in various parts of the world. And one continually remains of the assertion of the International Commission of Jurists after the Lagos Conference in 1961 that the rule of law embraces those institutions and principles of justice, which are considered minimal to the assurance of human rights and the dignity of man.

Judicial activism now appears to be a prominent feature of many political systems that vest adjudicatory power in an independent judiciary. The scope of judicial varies, however, from one country to another. Where the Courts have been given the power of judicial review of administrative discretion and the legislative action, judicial activism emerges with great eminence. The point I wish to emphasize is that judicial activism is an inseparable feature of the judicial process in democratic settings and a very relevant question arises as to what should be the scope of judicial activism permissible to a judge.

Judicial activism has assumed several forms. In some settings, the judges have been given the discretion to choose alternative courses of action. Certain other settings have what is known as ‘technical activists’. It gives a free choice to the judges to have recourse to action to a wide range of techniques and choices. It is concerned with keeping jurists techniques open-ended. And there is a shift from formalism; judicial activism operates as a device for achieving social justice.

So it would seem there is some similarity between the fact judges can have power of the outcome of a case. Both judges can be right.
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