Do Courts Also Make Laws?
Parliaments make laws. Courts make it binding and enforceable.
Do courts also make laws? And if they do. Are they usurping the jurisdiction of the legislature?
Primary function of the courts is to apply the existing laws to the disputes before it. But what if there is a gap in the law. When the code is silent or obscure.
Should courts make a reference to the legislature whenever the statute is unclear on a given dispute?
French jurists actually did such an experiment in the beginning of the nineteenth century. It was decided, whenever the text of the code was unclear, the courts were bound to refer the points of difficulty to the legislature. The experiment failed completely because the legislature had neither the time, the energy, nor the capacity to deal with the task. (F.Geny, Methode d'interpretation, i 78-9)
So the courts must make laws in the course of deciding disputes.
Laws will be intolerable if the courts do not fill in the gaps.
Judge made laws are as necessary as the legislative enactments.
Kartikey
1 comment:
sir, in democratic system there is no need to make law by the courts because it will create institutional controversy. Today in indian context none institute is playing transparent and fair roll and judicial Institute is also one of them.now quetion is arises that how can be a good legislation framed yes it can be framed it's only when while legislation maker will have the strong will power to make public interest fulfilling legislation as well as the basic law's also so that courts may interpret these law's in public welfare without any inconvenience and can establish a rule of law. Regads.
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