How are laws made by the court?

Ben

So, this is to do with 'binding precedent'. Simply put, previous decisions made are followed. However, there is a court hierarchy i.e all lower courts must follow decisions in the higher courts, such as the house of lords. The House of Lords must follow directives from the European Court of Justice.

An example of this could be the 'Ghosh' test (from R v Ghosh), which is the two part test for 'dishonesty' in theft etc. Also, murder isn't defined in an act of Parliament; the definition followed is that of Lord Coke.

So courts don't actually make laws as such, although previous cases are generally followed, unless there isn't sunstantial case law (example being fraud; since the fraud act 2006 there is little case law to go by).

A better example of contrast between statutes and precedent would be the fact that assault and battery used to be common law offences, i.e previous decisions followed, however, they are now deemed as statutory offences under section 39 of the criminal justice act.

note: the judges rulling is known as the 'ratio decidendi' and the way in which he came to that to decision, but isn't part of the judgement is known as 'obiter dicta'.

Elliott M

they are not made in court they are executed and defined in court

njyogibear

when a court issues a ruling on a situation or set of facts that has never come up before the court before, the ruling sets a precedent that is followed in subsequent cases.

finglas9

The laws as transcibed by parliament are open to interpretation in the courts. Literal, Golden Rule. Mischief Rule etc as you know. However the implemenatation of law has to be fair to everyone. But we have an unwritten constitution, "a living breathing flexible constitution" courts change with society needs so law is "changed" rewritten iby the Law Lords. When they hear a case they only do it on a point of law their final decision can change law. The lower courts, Court of Appeal and case law in the high courts set law of precedent when they hear a case and rule on their interpretaion of the law. This then becomes law, "case law". That is why you hear barristers saying "your honour in the case Smith versus Smith 2006 the court of appeal ruled xxxxxx"
This keeps things fair as much as possible as the law is rewritten case by case. A Judge can rule (in the court of appeal) Royal Courts of Justice, in the light of prevailing law and changes in society. He can not change statute law from its litteral meaning when that law is beyond dispute in its meaning. A minister can introduce law called "statutory instrument" this operates from an already written statute but within that statute there exists room for movement by the minister.
Changing the speed limits, which is currently under debate, to protect school children near schools is one of them. The minister will not have to go back to paliament to reset statute because he can do it himself in response to public demand and the statute allows him to do it.
Administrative law is changed by Judical Review which is used when public departments or offices are challenged. For example; it is only relatively recently that prisoners wer told the reason why they did not get parole, becaus a group of prisoners took a case through Judicial Review and won. The court ruled it was against their human rights not to be told the reason they were not being released on parole. Henceforth the prison service (parole board) when they said "NO" they had to give the reasons for saying no.

Skate

There are 2 sets of Law - statutory law (statute is another name for Acts of Parliament) and the other is common Law, i.e. case decisions made by the judiciary for centuries.

The way judges make the law is by binding precedent, i.e. judges have to be bound by previous precedents (case law). It was meant to bring consistency to common law. However, because judges make distinctions between previous case law and their own case, then inconsistency may prevail.

There can be conflict between Parliament and Judges. Sometimes, Parliament has not made an Act of Parliament to deal with a situation in time, so the judges will intervene by ignoring staute law and making the decision themselves. For examples of this - see the Civil Procedure Rules on admissions and whether a Defendant is bound. See also Asbestosis cases.

David T

Never done a law course in my life but is this about the differences between case law and statutes?

http://en.wikipedia.org/wiki/Case_law

pandiculate

The courts "interpret" the laws made by congress. This step is needed when the law is applied to individuals or companies. The real world application of law, and the courts interpretation of that law in individual cases makes a law work in real life. A law freshly made by congress is like a plan. The execution of the plan (which may entail some adjustments in the plan) is what the courts do. Sort of like custom tailoring.

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