Judicial Creativity


Do judges make law?

People have different opinions on whether or not judges make law:

Declaratory Theory: judges merely discover and declare existing law and never makes 'new' law.

William Blakestone: Judges make a decision ''not according to his own private judgement but according to the known laws... not delegated to pronounce a new law, but to maintain and expand the old one'' Whilst this opinion is supported by some, others disagree. 

Professor Hart: accepted that judges make new law which is neccessary where there are no existing rules to cover the situation. An example of this is in Re A when judges had to decide whether joined twins should be seperated at the result of one of them dying.

To support this view...

Lord Edmund-Davis said in 1970 that ''the simple and certain fact is that judges inevitably act as legislators. 

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Precedent- unsupportive

There are characteristics which limit judicial creativity within precedent. 

There is a requirment to follow past decisions; these are those which have been made by higher courts which lower courts are bound by the ratio decidendi. 

Appellant courts, such as the SC, are bound by themseves. 

Judges are dependant on cases brought before them; this means they cannot change the law without an appropriate case at a high enough level. For example, a builder owing a duty of care to house pruchasers discussed since 1960 but not changed until the case of Bratty 1978.

This all limits JC= means that there's no room for judges to make the law/ changes to law at their own will. 

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Precedent- supportive

Characterisitics aid JC

Practice statement gives HOL power to change law 'when it appears right to do so'. E,g. BRB V Herrington- trespasser owes a duty of care. 

Practice statement= allows judges to change laws and not follow past cases (previously bound to do).

Higher courts- overrule (MvM BvB)

Dissenting- e.g. Lady Hale on a case involving prenuptial agreements.

Power of dissenting= it allows other judges to question whether the existing decision is the right one and re-evaluate the circumstances- changing decision? 

ALL EVIDENCE= despite rules of precedent, judges still being creative- alloes us to question the value of precedent. 

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Statutory Interpretation

Process by which courts interpret and apply legislation. 

The literal rule- explains that no creativity is shown and therefore ensures the seperation of powers. 

Judges often argue that it is not within their role to change the wording of statues, that is a job for parliament. 

For example, in Whitely V Chappel it was found that dead people were not entitled to and so the D had not committed the crime of impersonating a person entitled to vote- judges did not change this decision. 

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Golden rule and Purposive Approach

Golden rule- allows the literal rule to be avoided, but only where it leads to absurdity as in Re Sigsworth where the courts held that a murderer could not inherit his mother's estate whom he had murdered. 

The golden rule is an example of how slowly the judges are becoming more and more creative.

The purposive approach-allows creativity but also upholds parliamentary sovereignity. 

Judges must interpret what parliament intended but may put their own values on it, such as in...

R v Secretary of Stae when it was held that whilst cloning creates embryos without fertilisation, these embryos should be protected by law as government intended to protect embryos from harm. 

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Policy and Principles

Must be a balacne between the roles of parliameny/judiciary. 

It is the role of parliament to create law as they are the supreme legislative authority in the UK.Lord Ratcliff- ''it is unacceptable constitutionally that there should be two sources of law making at work at the same time'' 

Formulation of policy is for parliament to decide.

Ronald Dworkin distingushed between principles and policies- he said that principles are concerned with rights and should always be applied by judges whilst policies are concerned with achieving social and political goals and are the responsibility of the legislature.e.g the term 'innocent until proven guilty' is a principle, while the public health system is a policy.  

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Policy Decisions

Some judges have to make policy decisions, e.g. in Gillick judges made the policy decision that under 16's should be given contraception if they wish to have it. 

In the Coroners and Justice Act 2009 s.54 Loss of Control- had a sexual infidelity exclusion as parliament said that due to policy considerations sexual infidelity should not be included in the qualifying factors. This is an example of where policy decisions can be seen in criminal law.

Policy decisions also appear in tort law, as shown in Alcock c CCSY when Lord Oliver limited the number of potential victims due to policy considerations. 

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Negatives to Judicial Creativity

Whilst it's clear that judges are creative within the law it doesn't mean they should be...

  • Judges are not elected, nor are they representative of society as a whole. Senior ranks of the judiciary remain predominantly white, middle-aged males.
  • Members of parliament are chosen by the public and so we as a society accept their role in the legal system but when judges make their own law we lack understanding and accountability as to their judgments. 
  • Judges are often pressurised into making hasty decisions, compared to Parliament who have had time to properley consider why something should be law e.g. in Re S a pregnant women was forced into having a caesarean section and it was later foung that the women's right were paramount, but it was too late for the decision to be changed. 
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Benefits to Judicial Creativity

There are some benefits to judical law making...

  • It provides flexibility as appropriate precedents may be followed and others can be distinguished or overrulled (BRB v Herrington) this allows for the correct decision to be made. 
  • Practical solutions are provided for real life situations e.g. R v R when a solution was provided instantly to the problem of law on marital **** that had been festering for many years. 
  • Judges are able to address problems created by advances in technology which allows for the law to be modern and coincide with existing circumstances (Royal College of Nursing v DHSS), this also helps to fulfill parliaments intention. 
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It is clear that judges do make law, and whether this is considered to be inappropriate to some or beneficial to others we have ways in which their role can be justified. 

I think that whilst Parliament should have the overall say on what the law should be, they don't get to experience each case individually like judges do everyday, and therefore will have a better idea on what law is right and which is wrong. 

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