The tools and techniques of judicial creativity and precedent

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Tools and Techniques of judicial creativity

the tools and techniques of judicial creativity and precedent

Creativity - Tools and Techniques

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The articles under this heading deal with judicial institutions and processes. Closely related are Adjudication and Judiciary. A detailed guide to further topics will be found under LAW. The judicial process is a set of interrelated procedures and roles for deciding disputes by an authoritative person or persons whose decisions are regularly obeyed. The disputes are to be decided according to a previously agreed upon set of procedures and in conformity with prescribed rules. As an incident, or consequence, of their dispute-deciding function, those who decide make authoritative statements of how the rules are to be applied, and these statements have a prospective generalized impact on the behavior of many besides the immediate parties to the dispute. Hence the judicial process is both a means of resolving disputes between identifiable and specified persons and a process for making public policies.

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Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional, [1] though what counts as obviously unconstitutional is itself a matter of some debate. In deciding questions of constitutional law , judicially restrained jurists go to great lengths to defer to the legislature. Judicially restrained judges respect stare decisis , the principle of upholding established precedent handed down by past judges. When the conservative Rehnquist Court overturned some of the precedents of the more liberal Warren Court, Time magazine said he was not following the theory of judicial restraint. Judicial minimalists argue that judges should put great emphasis on adherence to stare decisis and precedent.

Case law is the collected body of decisions written by courts and similar tribunals in the course of deciding past cases, in which the tribunals analyzed the law to resolve ambiguities and fill gaps to set principled rules for deciding those past cases. These past decisions are called "case law," or precedent to the extent that those past decisions are used by future judges to decide future cases. These judicial interpretations are distinguished from statutory law , which are codes enacted by legislative bodies, and regulatory law , which are established by executive agencies based on statutes. In some jurisdictions, case law can be applied to ongoing adjudication ; for example, criminal proceedings or family law. In common law countries, the term case law is a near-exact synonym for common law.

It has always been a burning question as to whether the judicial creativity is permissible or inevitable and if so, up to what extend? Judicial Creativity and its Permissible Limits Coke, Hale and Blackstone have believed that judges play no role in law making. On the contrary other judges and jurists are of the opinion that judges do and must legislates. Judicial creativity may be safely permissible, where citizens are suffering due to lethargy of legislative inaction. Singh v. Suffice it to say that the above direction issued by the High Court cannot stand judicial scrutiny and it is hereby set aside.



Judicial restraint

Judicial creativity is basis of judges. A theoretical issue which casts doubt over precedent as a limit to judicial creativity is.,

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Judicial Process

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