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Do Judges Make Laws?

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    Parliamentary sovereignty is the key stone in the British Constitution. If judges were to make law then they would be contradicting this doctrine. The legislative supremacy disqualifies the courts power to review the validity of legislation, refer to British Railway Board v Pickin . The objective of judges is to not make law but simply declare what the law had always been. Acts of Parliament are the highest form of authority and the courts hands are tied by it. But through the doctrine of precedent, the judicial function of declaring and applying the law has a ‘quasi-legislative effect’.

    The rules of precedent themselves are judge made, except where a statute has intervened. Occasionally, judges have to decide on a case where there is no previous legal decision or law for the judge to use. This leads to judges technically making law through original precedent. The doctrine of Precedent is the process whereby judges of a lower court are bound to follow a decision on a point already made by a judge in a higher court. It is based on the maxim “stare decisis” which means stand by what has been decided. To satisfy the conditions in the doctrine, the previous point must have been the “Ratio decidendi” (reasons for deciding).

    The previous court must have been at a higher level than the present or at the same level. The rest of the decisions are “obiter dicta” (things said by the way) not strictly binding but merely persuasive. Though the rules of precedent are applied rigidly and don’t appear to allow scope for creativity, there are ways in which the doctrine of precedent can be avoided, thus allowing judges to create new law. The 1966 Practice Statement allows the House of Lord to ‘update’ the law, thus extending the power of the Law Lords to ‘create’ law. The court of Appeal is bound by their past decisions.

    This principle was laid down in the case of Young v Bristol Aeroplane Co. Ltd . There are 3 exceptions that allowed them to not obey their previous decisions. “First, where there are conflicting decisions in past Court of Appeal cases; the court can choose which one it will follow and which one it will reject. Second there is a decision of the House of Lords (now Supreme Court) which effectively overrules a Court of Appeal decision; the court of appeal must follow the decision of the House of Lords. Lastly, the decision was made per incuriam.

    The last exception gave the Court of Appeal limited powers to change or create law. The court of Appeal is divided into two divisions; criminal and civil. The criminal division may adopt the exceptions from Young’s case. It is uncommon for the exceptions to be used, however it provides the flexibility the Court requires. The method of distinguishing can be used by any judge of any courts to avoid following a past decision. It means that the judge finds the material facts of the case are completely fresh for him to draw a distinction between the present case and the previous precedent.

    He is not bound by the previous case. A large portion of the law today is owed by principles laid down by judges themselves. Judicial decisions have a strong influence on the law of contract, tort and criminal law. For example without consideration an agreement is not enforceable; refer to Combe v Combe . The judges also implemented the minors capacity in a contract. In Klienwort Benson ltd v Lincoln City Council , the courts have not refrained from making innovative decisions that money paid under a mistake of law was not recoverable.

    Most of the rules which govern the formation of contracts come from decided cases. The established tort of negligence today originated from the principles laid down by Lord Atkin in Donoghue v Stevenson and this concept has been applied and developed by other judges. In medical situations, if the patient understood and is capable of exercising his own judgment can withhold his consent on artificial feeding which was maintaining his life. Refer to Airedale NHS Trust v Bland. Doctors have to abide with the will and the decision of the patient or they would be committing trespass.

    The House of Lords also laid down the guidelines for liability for nervous shock first. Refer to Alcock v Chief Constable of South Yorkshire. It is also because of judicial decisions that new crimes such as rape within a marriage are considered a crime today. Refer to R v R. Although parliament has attempted to cover every aspect of the common law in statutory form, they still embody the initial principles. In 1966 the House of Lords announced that it would in future be prepared to depart from a former decision by the House when it appeared right to do so .

    It is vital that the judges update the law according to the society and values today. An example of this case of R v R where a man was charged for raping his wife. This matter was brought up to the House of Lords, the judges pointed out that the ‘status of a married woman in our law have changed quite dramatically. A husband and wife are now for all practical purposes equal partners in marriage. ’ They also highlighted that the common law is ‘capable of evolving in the light of changing social, economic and cultural developments. ’ This implied that judges (House of Lords) can change the law only if it is a necessity.

    It would be impractical for judges to not make law in some situations as both parties in the case would not want the judge to refuse to deal with the case and they would want the matter decided. ‘Judicial decisions are important as a source of law on matters where the government is unwilling to ask Parliament to legislate. The executive is slow to propose new measures exposing itself to more effective judicial control. ’ Initially it was the law that by mutual matrimonial consent the wife has given up herself to sex with her husband and could never say no.

    This was seen in R v Miller. Before R v R , even though the wife had started divorce proceedings, the man could not be charged with marital rape and Parliament had not taken any initiative to reform this law. The ability of judges to create law by their decisions compared to Parliament are much narrower since Parliament may readily change established rules of law and it does not have a retrospective effect except for the case of Burmah oil v Lord Advocate . Judicial law making on the other hand is subjected to individual liberties and the principles of public law.

    It is now generally accepted that judges ‘do and must make law in the gaps of Parliament’ and welcome development of the common law. ‘The common law is a developing entity as the judges develop it, and so long as we follow the well tried method of moving forward in accordance with principle as fresh facts emerge and changes in society occur, we are surely doing what parliament intends to do’ . Certain subject matters are best adjudicated by the courts creativity. The meaning of law in the statutes passed by Parliament should be clear and explicit but this is not always achieved.

    To avoid awkward conflicts on the meaning of an Act of Parliament using the literal rule, the judges will interpret the statute through the golden or the mischief rule. The judges have not been able to agree on which approach should be used and once an interpretation has been laid down, it may then form precedent for future cases under the normal rules of judicial decision. All three of these rules can result in very different decisions. Literal rule is defined as approaching problems of statutory interpretation by taking the words at their face value. The literal rule has both advantages and disadvantages.

    Constitutionally it respects Parliamentary Sovereignty. It also encourages certainty and transparency in law. The disadvantage of literal rule is that it fails to recognise that the English language itself is ambiguous and that words may have different meanings in different contexts. The use of this rule can sometimes lead to absurdities and loopholes which can be exploited by an unmeritorious litigant. Lord Esher expressed that despite the absurd results that an act may produce; if the act is clear then the courts are bound to follow it despite how harsh or unjustly the decision may be.

    Michael Zander denounced that the literal rule is mechanical and divorced from the realities of the use of language. He criticised the decisions made in London & North Eastern Railway Co v Berriman where the widow’s claim was squashed as the courts took the word ‘relaying’ and ‘repairing’ in its literal meaning in the Fatal Accidents Act. In Fisher v Bell, the courts held that the defendant was not charged under section 1(1) of The Restriction of Offensive Weapons Act 1959 as him displaying flick knives was an invitation to treat and not an offer to sell.

    The same principle applied to cases such as Partridge v Crittenden and Pharmaceutical Society of Great Britain v Boots Cash Chemists Ltd . In Nash v Inman, a tailor sold 11 fancy waistcoats to a minor, who was a Cambridge undergraduate who had a rich father. The minor refused to pay them. The tailor’s action failed because he could not establish that the defendant was not already amply supplied with clothing; the waistcoats were not therefore considered necessaries under the Sale of Goods Act 1979.

    In Duport steel v Sirs , a steel company took an action against the trade union contesting the union’s immunity from tortious liability under the Trade Union and Labour Relations Act 1974. In particular, the court had to decide whether or not secondary picketing by workers during the course of an industrial dispute was lawful. The House of Lords overruled the decision in the Court of Appeal and deemed the practice of secondary picketing to be lawful under the statute and upheld Parliamentary supremacy. As time passed, there were modifications to the literal rule. The golden rule was an alternative method to interpret an Act.

    More discretion is given to judges when utilising this rule. There are however limitations on how far the golden rule is utilised. The first would be the narrow view. Under the narrow view, the courts may only choose between the possible meanings of a word or phrase. This was illustrated in R v Allen . The word marry in section 57 of the Offence Against the Person Act 1861 had two definitions, legally marry another person or going through a ceremony of marriage. The person was guilty of bigamy. The courts held that silent phone calls now can amount to trespass as seen in R v Ireland using section 3 of the harass

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    Do Judges Make Laws?. (2017, Jan 03). Retrieved from

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