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The problem with precedent.
Member rating: No Rating | Words: | Submitted: Fri Jan 30 2004
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The problem with precedent One of the most widely-accepted principles of the English legal system is what is known as the `declaratory theory' of judicial decision-making. This principle states that when judges are required to make decisions, they do not create or change the law, they merely `declare' it. That is, a judge says what he or she finds the law to be; no `new' law is ever created by judges. New law comes from Parliament. For example, the Criminal Justice Bill that is currently going through Parliament will make fairly radical changes to the criminal law. It will take away the blanket immunity that currently exists from being prosecuted twice for the same offence. No-one is suggesting that this Bill declares the law: the ancient `double-jeopardy' principle has existed for centuries. When the Bill is enacted, the law will simply change. This article attempts to show, first, that the...
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