Judge-made law in HK

Essay by alien151 October 2008

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What is Judge-made law/ case law?•Case law= cases, precedents, cases passed in Hong Kong before & cases passed in England Privy Council before July 1, 1997(BL art. 8) The laws previously in force in Hong Kong, that is, the common law… shall be maintained.

** Case Law/ Doctrine of precedent is an integral part of the common law system.

•Precedents in England and other common law jurisdictions, though non-binding and with English precedents in particular, have significant persuasive effects on Hong Kong courts (BL art. 84)Do judges actually make law?•Separation of power: judiciary interprets laws and resolves disputes but it is not supposed to make law. (Art. 85)•Declaratory Theory: Judges only declare law, 'jus dicere, non jus dare,' to say the law, not to give it.

** Judges do make law PASSIVELY. There must be a case coming before a court before a judge can make law.

•Sara: However, 'because of the actual process of the system: i.e.

precedents, there are chances that judges make law as well.'•(Dobison & Roebuck, 2001): 'It can be said that law is also created by the decisions of the higher courts through their applications and interpretation of common law principles and legislation.'•Realist Theory: 'Judges, when developing the law, change it, create it, make it; the common law is judge-made law and therefore identical to what the judges say it is.' (Wesley-Smith, An Introduction to the Hong Kong Legal System, 1998)•Positivist explanation: 'Judges possess law-making authority by virtue of their office; given that we, including judges, are obliged to obey the law and that the law is authoritatively declared or created by judges when adjudicating upon disputes, the rationes of judicial decisions represent the law and thus must be followed.' (Wesley-Smith, The Sources of Hong Kong Law 1994)HK Cases:Attorney General v Shun Shing Construction [1986]...