But the latter one is usually referred to as judicial activism.
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Judicial activism, an approach to the exercise of judicial review, or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions.
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Therefore, fifty-fifty if judges lack to engage fashionable judicial legislation they are nonetheless unnatural by legal rules.
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Is there a limit to the creativity of judges?
A theoretical issue which casts doubt over precedent as a limit to judicial creativity is that for a given set of facts there may be two precedents, apparently of equal viability, which are irreconcilable in terms of outcome.
Is the common law the basis of Judicial Creativity?
You should not treat any information in this essay as being authoritative. This essay will argue that judicial creativity is the basis of judges’ practice of the common law (‘judge made law’) and also has an influence on enforcing positive law enacted by Parliament.
Why do judges keep quiet about their legislative function?
He states that judges should ‘keep quiet about their legislative function’ as the ‘image of the judge, objective, impartial, erudite’ is one which bears the law in higher esteem. On balance it is clear that judges often create the law, especially when issues of moral or political contention are at stake.
Is it possible for judges to exclusively apply the law?
They would suggest that the judges had posited new law, derived not from morality, but social norms. This is the idea of the ‘activist’ judge, who facilitates the adaptation of the common law to current social consensus. Is It Possible For Judges To Exclusively Apply The Law?
Last Update: Oct 2021
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