Judicial creativity essay



The traditional view of the law making process is that Parliament makes the law through acts of parliament and delegated legislation and judges merely apply it in court to the cases presented before them. The main reason for this being that Members of Parliament are democratically elected to make law. Whereas judges are appointed by the Lord Chancellor to decide cases.

Although theoretically this should be true in reality judges can and do make law through the operation of the doctrine of judicial precedent and statutory interpretation.

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In England and Wales the courts operate a very rigid doctrine of precedent which has the effect that every court is bound by the decisions made by courts above it in the hierarchy and in general courts are bound by their own past decisions.

The doctrine of Precedent is the process whereby judges should follow previous decisions in similar cases to help maintain a degree of consistency in the way the law is applied in similar cases. It is based on the maxim “stare decisis” which means stand by what has been decided.

The Ratio Decidendi (reasons for deciding) is the binding part of a judge’s decision but how judges interpret this can vary thus changing the impact it can have on future decisions.

The obiter dicta (things said by the way) though not binding can still be used as persuasive precedent and so a judges influence can extend beyond that provided by the rules of precedent.

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Ways of avoiding precedent:

Distinguishing = the facts in the 2nd case differ from the binding precedent so judge may choose not to apply by distinguising the first case. Baflor / Merritt

Reversing = higher court decide lower court reached wrong decision so reverse the decision. Kingston

Overruling = higher court decide the ppint of law decided in previous case was wrong and changes it. Eg Addie v Dumbreak / British Railways Board

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When an original case comes before a judged he may have to interpret the statute and create new precedent . In statutory interpretation the judge s are being asked to decide the meanings of an act of Parliament. There are a number of conflicting views on the role of judges in this area.

Some follow the Literal Rule which states the words must be given their plain, ordinary, grammatical meaning. This can mean using the literal meaning of the words even if the result is not sensible.

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But the judges recognise that on some occasions other methods of interpreting the words were needed. The golden rule is a modification of the literal rule. if the literal rule leads to an absurd result or repugnant result, or even if there is some ambiguous wording in the act. In the narrow application of the golden rule the courts may only choose between the possible meanings of a word or phrase. (R v Allen- Bigamy case). Or in the wider application of the golden rule it is used when the words have only have one clear meaning but that would lead to an absurd result. In these cases the courts will use the rule to modify the wording of the statute (Re Sigsworth-inheriting money from the mother he killed).

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The mischief rule gives a judge much more discretion than the golden rule. When using this rule the judge should look to see what the law was before the act was passed in order to discover what gap or “mischief” the act was intended to cover. The court should then interpret the act so the gap is covered (Smith v Hughes prostitutes soliciting from a window)

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A more recent form of statutory interpretation is the purposive approach. This goes beyond the mischief approach as it is not just looking to see what the gap was in the law, the judges actually decide what they believe parliament intended by the act. This gives the judges the most opportunity to create law and perhaps even distort what parliament intended. However when making statutes Parliament may base proposed statutes on hypothetical situations and it is not possible for parliament to predict every possible future situation that could arise. And so it may be necessary for a judge to interpret a statute so it can be applied to those unforeseen situations.

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Judges do however argue that in using these methods of avoiding precedent or interpreting statutes they are not making law; they are merely developing the law which already exists.

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