Explain the role of the judiciary in developing common law. Does this Essay

Explain the role of the judiciary in developing common law. Does this role assist with law making Explain the law making proces - Essay Example Customs were codified in the period of William the conqueror and this is said to be the basis of common law. With time, the king’s courts started to be used as a forum for dispute resolution of individuals, thus making it the common law and was subsequently said to be distinct from customs. However, the judges of that based their decisions on the customs and when a situation arose where no custom could be found new laws were formed. The procedure used at that point in time was by way of issuance of a writ, however, problems arose, as writs were fixed and only Parliament could approve a new writ, for a problem, which did not come under the existing writs. This caused a lot of problems thereby creating a rigid legal system and in lieu of this a practice of petitioning to the king was developed whereby individual cases were dealt with by the Chancellor. In turn a Court of Chancery was established whereby a new rule of ‘equity’ was established, which was contrary to t he common law of the ordinary courts. 1 The Court of Chancery was effective in respect of rectifying injustices but the existence of a parallel system was a problem, one of the problems being the existence of two separate procedures and was bought to an end by the Judicature act 1873-1875 whereby a unified system was established. 2 Thus the important aspect of the English Legal System has been its development by way of precedents, which the courts followed by way of the hierarchy of the courts. Furthermore, the fact that the House of Lords did not till 1966 have the power to overrule its own decision has also played an important role in this respect. The hierarchy of the courts has played an important part in respect of development of the common law and therefore the doctrine of binding precedent has led to such development. 3 The decisions of the judges are based upon the ratio decidendi and obiter dictum. The ratio of a judgment is the binding decision and the reasons for deciding , however, obiter dicta are the things that have been said by the way.4 The advantages of the hierarchy of the courts and judicial precedent is the consistency of decisions, certainty of decisions, efficiency of time and last but not the least flexibility of judges to mould common law.5 The disadvantages can be uncertainty by stare decisis, fixity by way of unjust precedent and unconstitutionality in respect of separation of powers.6 Thus the judges have played an important role in respect of developing the common law as can be seen by the historical developments. The judges now also play an important role by way of statutory interpretation. The next issue that would be looked into is the law making process of the Westminster Parliament and whether or not it’s effective. The Houses of Parliament are House of Commons and House of Lords. The laws of Parliament also known as Acts of Parliament are also called statutes or legislation. These acts can originate via party manifestos ; national emergency, crisis or new development; Royal Commissions; the Law Commission; or Private Members’ Bills.7 There are different types of Bills and these can be classified as Private Bills; Private Members’ Bills; or Public Bills. Public Bills are the common form of bills introduction of which is usually done by a Government minister. This is the most common type of Bill. Public Bills deals with matters which affects the public generally. As far as Private Members’