Preference, obligation and feasibility

Create a 15 page essay paper that discusses Whether or not the right balance between preference, obligation and feasibility is being struck by judges.Whether or not the right balance between preference, obligation and feasibility is being struck by judges Although previously, it was not recognised that judges make laws, the modern view is that they make laws. This view is supported by Lord Radcliffe (Doctrine of Precedent Online). The judge continually applies the law to new situations and cases and in the process creating new laws.

However, there are instances when courts decline to change the law on the ground that it is better for the Parliament to remake the law. In the case of R v Clegg, it was suggested that fairness would be achieved by charging Clegg of manslaughter instead of murder because of his wrong reaction but without evil motive (National Decisions 1967). And that a new qualified defence be available to a soldier or police who used excessive force as a defence or in the prevention of a crime. The reduction of murder to manslaughter should better be left for the Parliament to change because that issue is part of a wider issue of maintaining a mandatory life sentence for murder. (Doctrine of Precedent Online). In the case of C v DPP (1995), it was put in issue whether to abolish the presumption that a child of 10 to 14 years of age is incapable to commit a crime. The House did not abolish it but called upon the Parliament to review it. Lord Lowry provided guidelines for judicial law-making, as follows: (a) not imposing a remedy where the solution to a problem is doubtful. b) be cautious of making changes if Parliament itself refused to deal with a known problem or has legislated but left the problem untouched.

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