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Legislating from the bench

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  • 11-01-2015 7:05pm
    #1
    Engele
    Registered Users Posts: 13 ✭


    hi everyone just wanna make sure I'm getting this right... would the 'legislating from the bench' be a judge whose ruling are more based on their personal feeling of what should be, rather than basing their decision on interpretation and application of law?? and does Ireland support this way of decision making? thanks in advance.
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    #2
    hullaballoo
    Administrators, Entertainment Moderators, Social & Fun Moderators, Society & Culture Moderators Posts: 18,724 Admin ✭✭✭✭✭hullaballoo


    No, it refers to judges making new law in their decisions. It used to happen a lot in English courts down through the centuries.

    More recently, it was prominent when judges favoured principles of natural justice, so that they felt they could fill gaps in the law, or bring an interpretation of the law that was subject to natural law.

    It is less popular at the moment both here and in the UK. This is because of the view that laws should be created by the people in a democracy, and under our system, the people are represented by TDs and Seanadóirí. Supposedly.

    The separation of powers also implies that this is the case.

    It would be great if that doctrine worked both ways but it has been greatly undermined in recent years.


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    #3
    Mr. Incognito
    Registered Users Posts: 9,798 ✭✭✭Mr. Incognito


    This is where a judge has to decide where there is a gap in the law. The x case being an example.

    The politican reaction is usually to pass an act to affirm or reject that decision or cidify years of agreed precedent.

    Unfortunately sometimes they attempt to codify a judgement based on a particular set of facts instead of having the balls to produce a mature bill as evidenced by the ridiculous legislation re abortion here which was forced upon ireland by having five years to pass legislation in this area after the echr ruled against them.


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    #4
    conorh91
    Registered Users Posts: 3,328 ✭✭✭conorh91


    Engele wrote: »
    hi everyone just wanna make sure I'm getting this right... would the 'legislating from the bench' be a judge whose ruling are more based on their personal feeling of what should be, rather than basing their decision on interpretation and application of law??
    Whether or not that really happens is debatable. It depends on the nature of the case at hand.

    In criminal and in revenue matters, for example, a Court will adhere strictly to as literal an interpretation of a statute or a rule as is reasonable and necessary. This is to achieve certainty in matters regarding personal liberty and commercial enterprise, and reflects a liberal ethos at the heart of the Irish legal system.

    At the other end of the scale, in constitutional cases, a simple textual reading of an Article may not suffice to deal with the diverse issues which can arise. There are about six different ways of interpreting the constitution (harmonious, hierarchical, historical, natural law, purposive and literal)

    Sometimes, different judges hearing the same case will use different methods, arguably because their chosen method leads to their desired outcome.


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