The role of the judge is to declare what the law is, and not to make Essay - 1

The role of the judge is to declare what the law is, and not to make it.Discuss this statement with reference to the theory and practice of both statutory interpretation and the doctrine of precedent - Essay Example The application of the law in particular controversies has been a contentious matter of this nature. Laws necessarily are framed in a general way so that they apply to a group of circumstances. When the judge seeks to apply these general principles to a specific case, he necessarily has to restate the law to a certain degree in order to put the case within its context. Similarly, the judge in common law cases is tasked to apply judicial precedent to subsequent cases to maintain stability in the law. The idea is that once meritorious, always meritorious – and, necessarily, the same for non-meritorious cases. Occasionally, however, the judge finds the need to modify or differentiate from precedent, to serve the ends of justice. In his treatise on the history and theory of statutory interpretation, William D. Popkin observed that originally, the judiciary and Parliament were not formally separated. Until the thirteenth century, Parliament was a mere group composed of powerful people summoned at the pleasure of the king. The function of Parliament at the time included â€Å"agreeing to pay taxes (it did not legislate taxes so much as assent to requests for money), dealing with matters of state (often foreign affairs), responding to petitions (what we would call private legislation), and passing some general rules (often prompted by petitions). Parliament was not so much a body as an occasion at which people met to parley or speak with the king as they saw fit† (Popkin, 1999). What may be deduced here is that judicial techniques such as statutory interpretation could not have existed while the legislature had not developed a sense of separation from judging. Until that was achieved, there was nothing to â€Å"interpret† as judges, being part of Parliament, could claim absolute competence in understanding the law. There was therefore a â€Å"shared sense of common enterprise† between Parliament and the judiciary because of the