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When no one makes the law

Judges and politicians refuse to take responsibility on assisted dying. The consequences are inhumane

Illustration by Ian Morris

When should judges make and unmake law? One simplistic and absolute view is that this is something that judges should never do, and that all lawmaking and unmaking should just be left to parliament. But this view indicates ignorance about our common law system, where laws as varied as the crime of murder and the civil laws of contract and negligence all have no ultimate basis in statute. They are judge-made laws.

A better view is that parliament is one source of law among others, but that it is “supreme” in that it can overrule other rule-makers. The…

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