Judicial legislation in English Law

On one end of the spectrum is the criminal law of England, which, starting from the second half of the 20th century, has predominantly developed based on parliamentary statutes. The vast majority of offenses against property, life, and health, as well as sexual offenses, are contained in codified or consolidated statutes of Parliament; issues of complicity, attempts to commit crimes, and juvenile responsibility are regulated at the legislative level. Therefore, judicial lawmaking in the criminal law sphere has a secondary, subordinate character in relation to legislation. On the other end of the spectrum are branches of English contract and tort law, which traditionally evolved based on precedent rather than statutory law and continue to evolve based on judicial precedents.The social consequences of judicial lawmaking in the criminal law sphere can be extremely negative and outweigh the merits of creating new criminal laws by high court judges.When discussing the style of judicial case consideration, two categories of English judges can be distinguished – traditionalistjudges and activist judges. Traditionalist judges do not acknowledge the lawmaking role of judges; instead, they see themselves as interpreters and appliers of the law. Therefore, when faced with clearly erroneous or unjust precedents or unclear statutory provisions, they refuse to correct these errors, justifying their refusal by stating that the development of the law is the primary function of Parliament, not the courts. Traditionalist judges interpret statutes literally rather than based on the spirit of the law, prefer to follow existing precedents rather than create new ones, use established methodologies when dealing with "complex" cases, and do not appeal to general legal principles or considerations of judicial policy.In contrast, activist judges openly recognize the fact of judicial lawmaking and correct past judicial errors, eliminate uncertainties in legislation, and fill its gaps. Activist judges prefer a purposive approach to interpreting legislation, interpreting statutes based on their objectives. They are more inclined than traditionalist judges to reconsider or reject existing precedents and create new ones. When resolving complex cases, activist judges refer to legal principles and considerations of judicial policy. Lord Devlin, a High Court judge and later a Lord of Appeal, highlighted active judicial lawmaking based on public consensus and dynamic lawmaking by judges, aimed at changing social processes and requiring prior publicity. If active judicial lawmaking does not contradict the principle of the separation of powers, dynamic lawmaking represents a judicial usurpation of the legislative function of Parliament.One of the brightest representatives of activist judges was the English judge, the head of the Division for Criminal Cases of the Court of Appeal (Master of the Rolls), and later a law lord of the House of Lords, Lord Denning. Early in his career in 1952, Lord Denning called on judges to revive the law of justice by creating new maxims that would allow existing law to meet the needs of modern society. The formation of moral-legal principles of justice was characteristic of the 17th and 18th centuries but not the 20th century when a certain consensus was established within the judicial community regarding the source of forming new legal norms, which was believed to be not judges but the sole legislative sovereign body of the state - the Parliament. Therefore, Lord Denning's proposal found no support among English judges; his views on resolving individual cases were almost always dissenting opinions (dissenting judgment).I made an analysis of Judicial legislation in English law with my colleagues. So, I think that is good, because judicial legislation allows the law to adapt and evolve to changing societal norms and circumstances. Judges can interpret statutes creatively to ensure justice is served in specific cases. Then my first coolegue thinks that it is convenient for people, cause judges can use judicial legislation to protect individual rights and liberties, even when legislation might be lacking in that regard. This allows for a more nuanced and just outcome in legal disputes.Other my colleague thinks that judicial legislation is bad, because judicial legislation can lead to uncertainty in the law, as it relies on judges' interpretations which may vary from case to case or judge to judge, creating inconsistency in legal rulings. And another my friend thinks that it is inconvenient, cause legislation through the judiciary may overlook the input and perspectives of the public, interest groups, and elected representatives who would contribute in a more transparent legislative process.While judicial legislation can be vital for the development and adaptation of the law, it should be used judiciously to maintain the integrity and effectiveness of the legal system in England.In conclusion, it can be argued that judicial lawmaking is evident in those branches of English law where statutory regulation plays a secondary role and where the positive effects of legal changes outweigh the negative consequences. The personal factor of the judge handling a particular case is also important in this context.ConclusionAs a result of studying the fundamentals of the constitutional system of the Kingdom of Great Britain, it should be stated:1. Great Britain is a unitary state consisting of autonomous units: Scotland, Wales, Northern Ireland and the Channel Islands.2. The UK Constitution is not codified and is based both on legislation and on non-codified sources (for example: judicial precedent, constitutional custom).3. The head of state and the main source of executive, judicial and legislative power in the United Kingdom of Great Britain and Northern Ireland is the British Monarch.4. Sovereignty in Great Britain is exercised not through the separation of powers, but according to the unified principle of “Crown-in-Parliament”. The British monarch appoints the leader of the party that wins the majority election as prime minister, although theoretically he has the right to appoint any British subject to this post. The monarch gives royal assent to bills of parliament, but formally has the right to refuse. The monarch can also dissolve parliament on the advice of the prime minister, but de jure has the power to dissolve parliament at will, without the consent of the prime minister.5. Other royal powers, including the appointment of cabinet ministers, the Privy Council, declarations of war, etc., within the competence of the executive branch, are exercised by the Prime Minister on behalf of the Crown, i.e. supreme state power. Thus, the British monarch's role in public policy is largely limited to ceremonial functions, although the monarch still retains some exclusive royal prerogatives. Unlike the constitutional monarchies of some European countries, the Queen of Great Britain has quite large powers.In practical terms, this means that courts in the common law system throughout their entire history of existence and functioning have constantly, albeit with certain "fluctuations," played and continue to play a very important role not only in their traditional sphere of activity - law application but also in law-making, in the process of shaping and developing common law. Thus, judicial law-making in England contains many aspects of practical interest and requires further study.BibliographyDispute Resolution Bulletin. January 2013 // hfw.com — сайт. 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