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Judicial Legislation

Published online by Cambridge University Press:  21 July 2009

Abstract

The author describes the main characteristics of the English judicial system and its methodology. A central topic is the so-called judicial legislation, as is illustrated by the developing case lawwith respect to the tort of negligence. The method has the twin advantages of flexibility and pragmatism and it also has the advantages of speed. But there is a minus side also. First, the development of the law in this way can only be achieved at the expense of certainty. Secondly, it involves the alteration of the law, sometimes a quite radical alteration, without any extensive consideration of the practical and economic results such as would take place in the course of parliamentary scrutiny and debate. Judges are not the elected representatives of the people and the methodology of English Judges which results in the development and alteration of the law without the benefit of parliamentary debate may not perhaps be altogether a satisfactory democratic process to a constitutional purist.

Type
Leading Articles
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1989

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References

1. [1976] A.C. 443.

2. [1961] A.C. 1007.

3. [1975].

4. [1975] Q.B. 416.

5. Id..

6. [1976] A.C. 443.

7. At 470 etseq..

8. [1932] A.C. 562.

9. Id. at 580.

10. [1899] 14 A.C. 337.

11. [1951] 2K.B. 164.

12. [1964] A.C. 465.

13. [1970] A.C. 1004

14. [1981] 1Q.B. 625.

15. [1984] 1 Q.B. 342.

16. [1987] 1A.C. 241.

17. [1978] A.C. 728.

18. [1988]Q.B.6O.

19. The decision of the Court of Appeal was affirmed by the House of Lords in [1988] 2 W.L.R.