Konatsu Nishigai

This dissertation discusses the mechanism in which judges create judge-made law in a common- law country. Judge-made law is not created by explicit legislation. Rather, judges create them through their rule-following actions. The term rule-following1 suggests that the action presupposes certain pre-existing rules. If the action in question follows those rules, such actions might not sound capable of generating any new rules. Instead, judge-made law might be thought of as accidentally produced rules when judges cannot find any pre-existing rule to follow or when judges deliberately ignore existing rules. On the contrary, I wish to argue that following pre-existing rules generates new rules no less than declaring new rules does. The dissertation identifies the mechanism in which judges create judge-made law in terms of the communication between the speaker (judges) and the hearers, which consists of the transmission of the four information packages from the speaker to the hearers: the...

The aims of this article are twofold: (i) to propose an explanatory framework, focusing on law-making acts, for accounting for whether the formal requirements of the rule of law are fulfilled; and (ii) to propose two further models within this framework. One model, which I call ‘rulebook formalism’, pertains to Parliament’s law-making acts; another model, which I call ‘rights formalism’, concerns the courts’ law-making acts. This distinction results from the different modality of law, ie the different natures of law-making acts. Drawing on speech act theory, I give a general account of the formal requirements as the success conditions of law-making acts. Then, applying this framework, I discuss the formal requirements for Parliament’s law-making acts and the courts’ law-making acts respectively.