Argument often arises over the ability of a judge to make law in ways that deny principles of democratic government. Part of this argument often revolves around what is simply interpretation of the law as it exists, notwithstanding disagreement over what is the law by lawyers and judges the necessity to decide cases that are without clear precedent. The view taken here is that declaring what he effect of deciding gives the law a practical effect that was previously absent. However, lawmaking by judges is not some simple usurping of power but constrained and necessary to resolve an impasse.

In summary:

The requirement for commonality brought about recording of cases and reference to them as precedent for future decisions.

Reference to higher courts of appeal necessarily involves an idea of a court hierarchy because an appeal would be meaningless without the possibility of overturning the decision of a lower court.

The highest court of the land (being the court from which there is no appeal) needs to preserve a right not to be bound by its own previous decisions.

The parliament has a right to make a statute that overturns the law as made or expressed through a court decision. This right is consistent with the doctrine of the ‘supremacy of parliament’ and is consistent with the operation of a democratic government.

Parliamentary supremacy is nonetheless subject to limitations imposed by its own constitution; and interpretation of the constitution may still reside with a court of competent jurisdiction

 

The relationship between the legislature in making the law and the courts in interpreting the law provides a separation that checks abuse of power. Parliament makes the laws that establish the courts and their areas of jurisdiction.