The judiciary is a branch of government whose role is to defend and uphold the constitution of a country or state (Edward 1986). Its main role is to make sure that the constitution in a country is upheld and every citizen abides to it. It is usually a system of courts, governed by judges, who mediate disputes and determine their outcome. The judiciary interprets the rules of a nation and applies the facts of each case that is heard in relation to the facts of a previous case. In most countries, the judiciary has a system of lower courts, which answer to a supreme court, also called the court of appeal. The Supreme Court is the supreme legal authority in all countries and states.
The judiciary protects the human, legal, civil and constitutional rights of every citizen in a country (Frank 2007). It has a role of protecting those who are weak from those who are strong, the powerless from the power and unlawful or unwarranted exercise of power by the state. It also secures domestic tranquillity by providing a structured, institutionalized forum which resolves disputes and vindicates the criminal and civil wrongdoers. When the judiciary upholds the rule of law, it creates precedents and advances a civilized society. Therefore, the judiciary aims to achieve the fullest measure of social harmony, human justice and progress. It is its duty to ensure that all the people who come before the court are treated with equality, dignity, and their human diversity is appreciated and respected.
Rules and laws are made by the parliament. However, these rules cannot cover all the possible situations that occur in courts. The laws from parliament have loopholes that can be exploited to suit certain individuals. They also have areas that need clarity when being interpreted. When the court hears a case that is not entirely covered by law, the judge determines what is not against the law or what is against the law. The judge also determines how the law should be applied to each case. It is at this point that the judges make the laws of a country. When one ruling is passed by a judge of a high court, it applies to all similar cases that occur in the future. Therefore, this decision forms precedence for all the similar cases that follow. A collection of similar precedents from all the cases heard in court forms the case law.
Apart from interpreting the laws of the state, the judiciary also overrules the legislation that they determine to be unconstitutional. The legislature is an arm act of government that formulates and makes the rules for a nation. However, some of the rules that they formulate may be unconstitutional. The judiciary has the authority to overrule such laws. In the United States, the Supreme Court nullified the state statute named Brown versus the Board of Education. It determined that the statute had established schools that were racially segregated. This establishment of racially segregated schools is incompatible with the fourteenth amendment to the United States constitution. This amendment stipulates that race should not be used to discriminate against any U.S. citizen. It also states that the diversity of all citizens should be respected and upheld by everybody, including the state.
The judiciary is bound by the constitution and judges in most countries and may only interpret the country’s constitution and all other laws. However, in common law countries, some matters may not be constitutional, and the judiciary creates rules under the doctrine of precedence. The judiciary has the power to change the laws through a process of judicial review. This occurs in courts, usually the court of appeal that has the power of judicial review. The court annuls or reviews the rules of a state when it finds these rules to be incompatible with a higher authority, such as the provisions of the constitution, primary legislation, and international law. Therefore, though the judiciary has no express power to make rules, it creates laws where the legislature had not made laws or had failed to make them clear.
The judiciary has the authority to make rules under the doctrine of precedence. This is a form of decision making and reasoning which is formed by case law. This occurs when a legal point made in one high court is later considered to be binding by another court. The law of precedence is crucial in the decision making of courts. When the materials and facts of a case in court are similar to the facts of a past case heard in a higher court, a decision which will be made in that case will depend on the decision of the first case. This means that the courts use the recorded precedents to determine what to do in the case. This is then referred to as the common law. These common law systems bind the courts to their previous decisions that have been made in prior cases. The judge who rules the first uncommon case sets a rule that is followed by all other judges experiencing similar cases.
In England, the House of Lords ruled that a manufacturer owed the final consumer of their product a duty of care, in the case of Donoghue versus Stevenson (1932). The ruling in the case of Donoghue versus Stevenson set a binding precedent that was followed by the judge in the Grant versus Australian Knitting Mills in 1936. The case of Shaw versus D.P.P in 1962 also formed a binding precedent. The judge, in this case, ruled that it was a crime for a person to conspire with the intention of corrupting public morals. This case formed the precedence for the case involving Knuller versus D.P.P in 1973. In England, the Court of Appeal and the High Court are bound by their previous decisions. However, the Supreme Court of the United Kingdom can deviate from an earlier decision and make a ruling that does not contain a precedent.
Judicial precedence is a common method for the judiciary to make rules. The rules made in this manner are developed entirely by the decision of judges. The speed of making such rules depends on whether the judge in charge of the case is a passive or active law maker. An active law maker formulates the rules with haste and in relation to the case at question. These types of judges formulate the rules immediately after they realise that the precedence to that case does not exist. This active law making process was witnessed in the United Kingdom in the year 1991. The House of Lords made this ruling in an isolated case, where a woman had accused her husband of attempting to rape her. The House of Lords overturned a previous exception of rape in matrimony and ruled in favour of the woman.
In passive law making, judges fail to make an immediate decision when presented with an unusual case. Instead, they shift the responsibility of making such rules back to the legislative arm of the government. A case of passive law making occurred in the case of C (a minor) versus D.P.P in 1995. In this case, the House of Lords refused to amend the presumption that a child below the age of fourteen years was not capable of criminal behaviour. The House of Lords ruled that such a child, below fourteen years of age, could not be guilty of any criminal offence. The House also explained that such radical changes in the law that allowed the conviction of minors could only be made by parliament. By refusing to amend the law and recommending the amendments to parliament, the House of Lords was passively involved in the law making process.
Judicial precedence has several advantages and disadvantages when enforced. It ensures that there is certainty in the law. The existence of laws made by judges via judicial precedence provides certainty among lawyers and their clients. The judicial precedence similar to a client’s case has all the rulings recorded. Barristers and solicitors give the right advice to their clients on the probable outcomes of their cases due to the existence of these records. These types of laws make the decisions made by judges predictable and certain. Therefore, due to judicial precedence, any person having a case with the facts similar to another previously decided case can predict its outcome accurately.
The other advantage of laws made by the judiciary through judicial precedence is the fairness they bring in the judicial system (Stroink & Van Der Linden 2005). According to the international laws, all the citizens of a country should be treated with equality and fairness. The judicial system promotes these values of equality and fairness. All the citizens of a state should be treated with equality and fairness regardless of their complexion, race, tribe, gender, and social status. When the judicial rules of judicial precedence are applied, similar cases receive similar treatment. The case facts that were used in the previous case govern the other ruling of an existing case. This brings about fairness in the judicial system and enhances the interests of equal justice to all citizens. The use of judicial precedence ensures that all those citizens who have committed similar crimes or have similar complaints receive similar treatment by the law.
The other importance of these rules is their factor of conserving time. Judgements made from judicial precedence take considerably shorter periods than those that do not invoke judicial precedence. This happens because a decision concerning such a case already exists. The parties involved in such cases are only tasked with the duty of identifying cases which are similar to their own cases. After identifying such similar cases, they present them to the judge, who makes a quick decision if the facts of the two cases coincide. Therefore, the judicial laws of save time to all the parties involved. Judicial precedence also reduces the possibility of courts being overwhelmed by cases requiring original deliberations and judgements.
The issue of judicial precedence allows the law to develop with time and alongside the changing society. The rule of law is there to ensure that all individuals are protected and feel safe in their country. As the society changes, there is the emergence of new legal issues that may not be covered by the constitution. These grey areas in the country law emerge as the society continues to evolve and change. It is the duty of the judicial system to interpret the law, identify such grey areas, and amend them or send recommendations to the legislative arm of the government. The judiciary, through these amendments and recommendations, allows the law to develop and suit the needs of the dynamic society. In the case of R versus R in 1991, a man was charged with an attempt to rape his divorced wife. Before this case, the legal principle that existed claimed that rape could not occur in marriage. The House of Lords found the man guilty and ruled in favour of the woman. In this case, the judiciary was able to identify a grey area in the law that governed the United Kingdom. The judiciary then responded by formulating a rule that considered the change in culture and society at large. It abolished an old-age rule that claimed women could not be raped when in matrimony and replaced it with one that respected social changes.
The other advantage of the judicial law making process is the autonomy of the judiciary. In most countries, the judiciary is an autonomous arm of the government that is free from the influence of politicians and other government individuals. In such countries, the decisions made by the judiciary cannot be interfered by the government. The salaries of judges, in these nations, are also not subject to approval by parliament. Their salaries are paid through a consolidated fund that does not require any authorisation by parliament. The senior judges also cannot be threatened with dismissal by the executive arm of government. Their employment is on a contractual basis, as based on performance, not on the mercy of politicians.
Judges, while seeking to reflect the intention of parliament in the process of interpreting the statutes, can exercise discretion to interpret the statutes purposively. In this process of interpretation, they can change or develop the common law to suit the interests of a nation. In such a judicial system, the judges receive immunity that prevents them from being manipulated by the members of parliament who want to suit their personal needs. Therefore, this judicial system formulates rules that aim to suit public interests. They make rules that have national interests, rather than rules that satisfy the needs of certain individuals. Therefore, judicial laws are safe from the manipulation by the members of parliament. They hold more weight as they focus largely on making the law supreme and fair to all people.
The other advantage of judicial law making is the fact that the law is made by judges with years of experience in the process of law making. These judges understand implications that the laws they make will have on people. Judicial laws have an expert touch from the law experts, the judges. The judicial laws make sense from the laws drafted by the legislature. The House of Lords refused to overrule a previous decision of R versus Vickers in 1957 because of the retrospective effect it would have caused to the people who were convicted of murder and had already been subjected to the death penalty. In this law making process, the judiciary showed its understanding of the effect that a law would have on the already existing ones. This is in contrast to the laws made by the legislature, which are usually the statements of general rules. The legislature also cannot anticipate the details of every case that may arise.
The other advantage of the judicial laws is that they save parliamentary time (Mitchel 2004). The legislature passes the laws after deliberations in parliament. These deliberations take a lot of time before a law can finally be approved by the head of state. In contrast, the judicial laws do not require such deliberations. The judge responsible for a case makes the law in reference to the facts that are in that case. It would be hectic and tedious for parliament to deliberate on all the details of individual cases. This drastically reduces the time that is used to formulate a new law and prevents the parliament from being overwhelmed with excessive workload.
Judicial laws also enjoy a greater flexibility in their formulation than the statute laws. The formulated judicial laws that are used as precedence in court can be altered by the Supreme Court without consultation with the parliament. Therefore, the judicial laws are flexible compared to the statutes that need deliberations by parliament, in case they have to be altered.
The process of judicial law making also has several disadvantages. The case laws formed by the judiciary may be confusing to laymen. Confusion results from the numerous cases that are reported and heard in courts. The cases bear close resemblance and it becomes hard to identify the case that is relevant to the one being heard. Through this confusion, the judicial laws can be misinterpreted, resulting into injustice in some individual cases. The laws made by the judiciary are also complex with numerous subtle distinctions. When such laws are used as case laws, they cause confusion. The use of judicial rules also causes stagnation in the development of the law. A precedent that is old and does not fit in the social setup of a current situation can be used to decide a case, provided the facts in the preceding case resemble those of the current case. This use of archaic ruling slows down the development of the law.
Judicial law making process also has the disadvantage of possible manipulations by unjust judges (Judicial Law-making 2012). The judges who decide a case have the full authority over it. In case the law is not clear on a certain issue, the judge has the power to make the correct decision and decide what is right or against the law. In such a scenario, some unscrupulous judges may be manipulated through bribes, resulting in unfair and individualistic rulings. After such a ruling is made, it is used as precedence by all the other similar cases that will follow. This shows that when the judges are corrupt and do not have integrity, they can manipulate the law and cause a cascade of errors through precedence. A wrong interpretation of the law by a judge may only be slightly inconsistent with the constitution. However, the propagation of this error through precedence may finally result into a large inconsistency with the constitution.
The laws formed by the judiciary are specific to a case, which results in many separate laws that the public fails to keep up to date with because of their bulkiness. These laws, made by the judiciary, contain many subtle distinctions that are too complex to be understood by the citizens of a nation.
It is evident that the role of the judiciary in formulating judicial laws cannot be overlooked. These laws fill in the voids that are found in the common statutes. Therefore, the judicial laws compliment the statute laws and make them suit individual cases. The judicial laws provide numerous advantages when they are formulated and implemented by judges who have high standards of integrity. However, they can be disastrous and cause deterioration in the rule of law when they are formulated by judges who lack integrity and pursue personal ambitions. Judges should be appointed in a free and fair manner and from all walks of life so that they cannot be biased politically, socially, economically, or even racially. Therefore, the process of judicial law making can only be fruitful and promote the rule of law when judges keep the interests of the nation at heart and maintain high levels of integrity.