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declaratory theory was suggested by Blackstone which states that a ‘judge is not delegated to pronounce new law, but maintain and expound the old one’. [1] Lord Esher stated; ‘’There is no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable’’. [2] It is often said that the Parliaments role is to make the law and the role of the judges is to apply the law. However, it is not always as straightforward. Such statements provide the first argument that judges simply follow the law which is laid out by Parliament. The traditional view of the function of an English judge has been that it is not to make law but to decide cases in accordance with existing legal rules. [3] However the Declaratory theory was dismissed by Lord Lloyd as fairytale. [4] He describes the judicial process as the determination of the law relative to the case, followed by the retrospective application of the law and thus, the courts changing the law. Another piece of evidence rejecting the declaratory theory is the 1966 Practice Statement [5] which permits the House of Lords to overturn its own decisions. Such legislation made way for such decisions in R v R. Although this does not create new law it gives the House of Lords the power to alter the position of the existing law. Another theorist (Dworkin) states that judges have no discretion in law making, they are merely implementing it. He also stated that the law was a seamless web of principles and judges have to follow these principles.

An example which would support the argument that courts have a role law making is Common Law. Common law is a vital source of law making. It has developed over the centuries through judges decisions. As time progresses common law evolves along with it due to many legal principles which arise. The key feature of the common law system is binding precedent also known as stare decisis. The precedent operation is dependent on the court hierarchy. A court is bound to follow the same decisions of courts above. Superior courts have the power to overruled decisions made by the inferior courts. Consequently every rule of law is subject to change, either by judges themselves or Parliament. [6] Backing the debate in which courts play a part in law-making is the view of Lord Radcliffe when he stated that ‘’…there was never a more sterile controversy than that upon the question whether a judge makes law. Of course he does. How can he help it?’’. [7] Lord Radcliffe’s words have immense weight due to the fact he was a well respected law lord.

In order for courts to interpret Parliament legislation they use the statutory interpretations. These are needed due to the fact that the language of a statute may be out-dated and needs updating. This is especially required for statutes which were created long ago such as Offences Against The Persons Act [8] which was created in 1861. The literal rule of interpretation states that the wording of the statute must be followed in a word by word basis. This gives judges no discretion for them to actually change the law but only to enforce it. The statute must be enforced by the judges even though it may lead to an absurd decision. A demonstration of this rule is the case of Fisher v Bell. [9] The strict application of the literal approach may be modified by the use of the golden rule. This means that where the literal approach would produce a manifestly absurd outcome, judges may depart from the ordinary meaning of the words, in favor of an interpretation which avoids the absurdity. [10] The mischief rule asks the judge to consider what the legislative purpose of the Act was-what was the ‘mischief’ the Act was trying to deal with. Any question of interpretation should be resolved in such a way as not to thwart that purpose. The problem with this view is: how does it relate to the concept of the independence of the judiciary? [11] There’s a major difference between the literal rule and the last two mentioned rules. The judges have more discretion whilst interpreting law using the golden and mischief rule contrary to the literal rule.

Judges are able to use internal and external aids in order to help them interpret legislation. Internal aid consist of; the long title, short title and the preamble. The external aids consist of; dictionaries, historical settings, earlier case law and Hansard. The purposive approach goes beyond the mischief rule in that the court is not just looking to see what the gap was in the old law; the judges are deciding what they believe Parliament meant to achieve. Lord Denning’s attitude towards statutory interpretation is shown when he said; ‘’we sit here to find out the intention of parliament and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis’’. [12]

Until 1992 there was a firm rule that the courts couldn’t look at what was said in the debates in Parliament. In Pepper v Hart the House of Lords relaxed the rule and accepted that Hansard could be used in a limited way. The case was unusual as there were seven judges hearing the appeal instead of the normal five. The majority ruled that Hansard could be consulted. [13]

Considering the discussions, it can be said that the role of judges in law-making is evident and is a crucial part of the ELS. It’s clear that Parliament has the biggest role in law-making however it can be argued that the courts and judges have a major part to play in the progression and development of out of date law. Lord Radcliffe’s statement into the subject of law making proves that judges indeed to make law.


Table of Cases:

Fisher v Bell, (1961) 1 QB 394

Willis v Baddeley (1982) 2 QB 324

Kleinwort Benson v Lincoln City Council (1992) 2 AC349 (HL) 394

Table of legislation:

Offences Against the Person Act 1861

1966 Practice Statement

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