statute law and case law

[clana]

In the UK courts judges use cases law and statute law.

However, case law is not democratic because it is the decisions of judges and in a modern democracy the members of the parliaments who have been elected make the law and the judges apply it. However, judges in a modern democracy do not make the law.

I would like to know if there is a statute who gives the right to judges to use case law

[R0b]

No, in the UK we operate a common law system i.e. a mixture of statute and law decided by the courts, murder being one example.

[atticus]

Although many aspects of common law have been amended or codified by statute. For example, with murder there is the Law Reform (Year and a Day Rule) Act 1996.

[clana]

We have to take into account of the following concerning case law

1. Case Law is simply a clarification or interpretation of the meaning of wording used in Enacted Legislation

2. Essentially Case Law is a particular judges' consideration and statement of how any unclear or ambiguous wording of Legislation should be interpreted

3. Case Law doesn't change enacted Legislation at all

4. In a democracy judges do not make the law. The law is made by the several hundreds of members of the parliament which have been elected. And, judges have to apply this law

Unfortunately because there is not statute law which regulates case law often courts wrongly consider case law as the law and in fact what they do is that they amend acts of parliament what they should not do because in a democracy the parliament makes the law and judges apply it but does not make it,

In a modern democracy case law become the law only when it has been incorporated in the statute law.

The Parliament not always amend a statute to take into account case law which means that in this case the case law should not be taken into account by judges as being the law, unfortunately often it is because the there is no statute law which regulates case law.

The reality is that judges should know that they should not make the law but unfortunately they often make the law because there is not statute law which regulates case law i.e. explains which case law could be taken into account (this which clarifies unclear points of a statute) and this which should not taken into account (this which amends the law)

Moreover, the use of case law is also anti-democratic and unfair because it put at a disadvantage litigants in person because only professional lawyers who have access to specialised databases know fully case law

[atticus]

I am guessing that the OP is a student looking for help with an assignment.

[clana]

You are guessing wrong. And, which kind of assignment it could be, anyone including teachers of law, lawyers and judges in this country believe that case law is the law.

The fact that you think that I am student preparing an assignment means that my thread raises an interesting legal issue

[R0b]

What interesting legal issue are you trying to raise? It appears that you are saying that in the UK courts do not make laws but only interpret the legislation enacted by parliament. If that's the line you are going down then it's absolutely nonsense as courts do create new laws - trespass to land is a tort created by the courts as is a more recent tort of misuse of private information both of which are not enacted in any legislation (though trespass to land is as it's both a crime and a tort).

Parliament is sovereign and yes the courts cannot strike down primary legislation but they can strike down secondary legislation. They can also deem certain acts as incompatible with other laws, for example human rights and it is then up to parliament to make the change.

Really not sure what point you are trying to make but I would repeat what I said initially, that we have a common law system where there is both law by acts of parliament and court-created law.

[clana]

You says that court creates new laws. However, the fact that court create new laws is wrong because it is anti democratic because judges has not been elected.

The court can strike down secondary legislations; however, secondary legislations are not acts of the parliament.

Court can issue a declaration of incompatibility but this concerns only acts of the parliamant which are incompatible with the European Convention of Human Right and not with other acts.
Moreover, this power of the court to issue declarations of incompatibility s based on Section 4 of the Human Rights Act 1998 which has been itself created by the parliament.
Hence, when a court issues a declaration of incompatibility it applies an act created by the parliament i.e. Section 4 of the Human Rights Act 1998 but it does not make any new law.
Anyway to declare that an act is incompatible with the European Convention of Human Rights is not to create a new law.

Common law was invented several hundred years ago at a time when the UK was not a democracy. However, now UK is a modern democracy and the courts needs to adapt to this reality.

I carry on thinking that in a modern democracy the members of the parliament who have been democratically elected make the law and the judges should apply it but judges do not make the law.

[atticus]

First year student assignments are intended to aid understanding of the basics, which need to be understood before the interesting questions can be addressed.

So if you are not a student, what are you actually getting at with your question?

[efpom]

https://www.supremecourt.uk/docs/speech-191028.pdf

[clana]

This document says that judges makes the law but I already knows this but this document does not explain why it is acceptable in a modern democracy.

This document says that a big part of our laws have been made by the judges but I already know this. However, we are now in modern democracy and new decisions of the judge should not be considered anymore as being the law as in the past.

We have to make a distinction between the new decisions of the courts which clarify a part of an act of the parliament, which needs to be clarified, which could be taken into account and the new decisions of the courts which make the law which should not be taken into account.

This document makes a big reference to the past but we have to make a different between the past and the present time because now the UK is a modern democracy

[efpom]

Go for it! - Stand for election!

Meantime, it is what it is.

[islandgirl]

Methinks this may be a Freeman on the Land...

[atticus]

Possibly. There is certainly something behind this that has yet to be disclosed. I wonder if the OP is miffed at a decision that has gone against him.