Do judges make law or merely play a role in interpreting law? Discuss Judges do both. Judges interpret the statue law and they make the common law. There are two types of law one would be the primary law, which is also known as the statue law and the secondary law, which is also known as the common law. For the primary law it is created by the legislature, which is the parliament as the parliament has the power to make the statue because the people elected them. So the judges interpret the primary law, which was created by the legislature.
For the secondary law, which is the common law, the judges make this common law base on the cases and it is developed extremely slow and cautious and incremental bit by bit. as they would need to consider the principle and the loopholes in the law that they might be create or they could also make it so that it only applies in that particular case. Primary law always trumps secondary law meaning if there is a primary law the court should always use the primary law for the case.
If there isn’t any primary law for the particular case then the court shall use the secondary law by referring the previous cases. They would interpret the existing statue law and the previous decision of higher ranking courts from there they would then decide whether to use the existing law or create the law by making legal principles which courts lower down the hierarchy are bound to follow depending on the case which they are attending to. This is so that they could be consistent with their ruling and it would be fair.
Back in the past, when the king’s representatives travelled from London to the provinces, checking the procedures in the local courts. They became the judges as time pass and the decisions that they make in the court that they trial was then recorded down and subsequent judges that passes through the town and trialed the case use the same decisions that the previous judge made so as to remain consistent on the law and so as time passes all this decisions that the king’s representatives made became common in the country and so they were soon known as the common law.
These were the times where common law was first created by judges abiding to the legal rules that Henry II had set. A statue is an act of parliament. The parliament has the power to enact, or revoke, any new law it pleases and that the courts cannot question the validity of this law. Even parliament cannot limit the power of a successive parliament. The government department, which consists of business, innovation and skills, propose legislation for approval. Which the parliamentary draftsmen would then draw a bill up and the bill starts its parliamentary journey.
The bill must pass through the house of parliament before it can become a statue. There are a few stages to the approval of bill becoming a statue. The initial stage is the first reading, the title of the bill and the announcing of the second reading. At the second reading the principles that the bill is trying to provide are being debated. If the bill passes this stage by gaining more votes from the MPs it would be referred to the standing committee which would then consider the details of the bills and recommends amendments.
And then it would proceed to the third reading where it is similar to the first stage as it is a short stage where only minor amendments to the content of the bill, rather than amendments to the general principle of the bill, can be made. The bill is then sent to the house of lord and house of parliament where the whole process would be repeated. After it passes through both houses it will be sent to the royal assent where it will become a statue, which the court must enforce.
When the judges are interpreting a statue, they uses canons of interpretation. The court is guided by three approaches. They are known as the literal rule, the golden rule and the mischief rule. Firstly, would be the literal rule. When the literal rule is applied, words in a statue, which are not ambiguous, would be given their ordinary meaning, even if this leads to a unjust or undesirable decision. Based on the case Inland Revenue Commissioners v Hinchy, which was about how Hinchy’s lawyers were fighting for his case against the House of Lords.
Hinchy’s lawyers argued that the Income Tax Act in 1952 in section 25(3) of the act stated that a person found guilty of tax avoidance should ‘forfeit the sum of 20 pounds and treble the tax which he ought to be charged under this act’ meant that a person would only be required to pay 20 pounds plus treble the amount of the tax he avoided. But using the literal rule, the House of Lord interpreted that the act meant that a person who avoided the tax should pay 20 pounds plus treble his whole tax bill of the year. Due to this decision by the
House of Lord other courts have to adhere to this decision made by them and so this was extremely terrifying for the rest of the people who avoided tax. In my opinion, I feel that judges in other court should not totally adhere to or follow what House of Lords did as they should try their cases on a case to case basis as some people may have been paying their tax on time but just miss out that one time and they were so heavily fined for that few dollars. They could be fined treble the tax they missed instead of treble the whole year’s tax just because they missed one. Or they could interpret the act differently.
The second approach would be the golden rule, which is also known as the purposive approach. This approach focuses on why the law was created and what did the parliament meant and is trying to achieve with the particular law when it was created. The judges would then go through the debates between the parliament members to determine the true meaning and purpose when the law was created to rule the case. When the golden rule is being applied, a judge gives the words in a statute their ordinary, literal meaning as far as possible, but only to the extent that this would not produce some injustice, absurdity, anomaly or contradiction.
Usually the court would use the literal rule in the trial first before they would decide to use the golden rule. This is because they realize that if they were to use the literal rule the result of the ruling would be absurd and they would wish to avoid this result they would choose to use the golden rule instead of the literal rule. So the golden rule is something like an extension to the literal rule where they are trying to avoid getting some absurd result.
For example when a defendant uses an absurd way of interpreting a certain act or law to defend himself, the judges would instead use the golden rule to make it as simple as the statement as it is. Using the Adler v George ruling as an example, the defendant was charged with obstructing a member of the armed forces ‘in the vicinity of a prohibited place’ and is his defense he said that he was not in the vicinity he was in the prohibited place itself and therefore he should not be convicted. But the court rejected what he said and replied using the golden ruling that what the act meant was ‘in or in the vicinity of. So if the court were to accept the defendant’s argument the result would have been absurd. As the law, “obstructing a member of the armed forces in the vicinity of a prohibited place” was created with the purpose so that nobody would enter the prohibited place. The third approach would be the mischief rule. In the mischief act the court should ask itself four questions. First, what was the common law before the act was passed? Second, what mischief or problem did the act seek to rectify? Third, what remedy had parliament decided upon to cure the mischief? Fourth, what was the reason for providing the remedy?
Based on these four questions, the court would then be guided as to how the statue law would be interpreted. This rule can only be used to interpret the statue when it has more than one meaning not when it has a clear or absurd meaning. For example, in Wolman v Islington LBC trial, GLC bye-law made it a criminal offence to park a vehicle with one or more wheels ‘on any part of’ a pavement. The claimant, parked his motorbike on a stand in such a way that its wheels were above the pavement but not actually on it. He therefore claimed that he did not commit the offence.
So the court applying the mischief rule held that the offence was committed if one or more of the bike’s wheels were on the pavement or over the pavement. In conclusion, the literal rule is applied when the statue does not have different meanings and are interpreted in their ordinary and literal meanings even if these leads to a decision that is unjust or undesirable. For the golden rule, the statue is interpreted in their ordinary, literal meaning as far as possible, but only to the extent that it does not produce injustice, absurdity, anomaly or contradiction in the decisions and it is an extension to the literal rule.
Usually the court would go start with the first approach, which is the literal rule, and when the defendant defends with an absurd argument the golden rule would be applied. The mischief rule is basically a rule that the court uses when the defendant tries to take advantage of the statue when there are loopholes in it or when the meanings of the statue is not clear and have different meanings. The court would then come up with a remedy to cure the mischief of the defendant.
The court would use any of the approaches that seems best suited to achieving justice in the case it is hearing and the approaches should be treated like guiding principles. We should bear in mind that we are not bind to the rules we should still view the case from a fair point of view as the approaches are out servants and our aids to construction and pointers. And sometimes the rule contradicts each other to a certain extent so by then the judges would have to weigh out which rule would be best suited for that particular case base on the relevant circumstances.
When considering the meaning of a statute, a court may consider certain aids to construction. These aids are usually labeled either intrinsic aids, which are part of the statute itself, or extrinsic aids, which are not part of the statute itself. Intrinsic aids would include interpretations sections of the Act, which state the meaning of words used in the Act. Extrinsic aids to interpretation include dictionaries, previous statutes concerning the same subject matter, and the Interpretation Act 1978.
Despite the name of this Act it is concerned with relatively minor matters such as: unless there is an indication the country and, when a statue refers to the masculine it also includes the feminine. Until recently, a judge interpreting a statute was not allowed to consider the speeches, which MPs made when the statute was being debated. In my opinion, these 3 rules are extremely good guidelines to follow, as they are fair to a certain extent and all the crimes that are committed would be brought to justice.
In the judicial precedent, it is said that the judges are bound by precedent and stare decisis, in the lower ranking court are suppose to follow the previous judicial decisions made by the higher ranking courts. For example if the supreme court made a decision or set a new legal principle the rest of the court below it would be bind to the legal principle that the supreme court had made as the supreme court is the most senior court. In the judgment that the higher court had made, the reason for the judgment will be the binding part on the other court.
So then future courts would then decide the judgment when they are considering whether or not they are bound by it. Some courts usually have more than one judges attending for example, the appellate courts and it is usually a odd number of judges as all these judges will have their own statement and they would decide on the case individually and if the decision is unanimous for example all of them agreed that the defendant is guilty or the appeal is successful, only one of the judge is required to provide the facts and it can be used as a binding part.
If not all the judges agree with each other then the majority would have to read out all their judgment and it would not be able to be used as a binding part, which is known as ratio decidendi. A higher ranking court can overrule a ratio created by a lower ranking court but this is highly unlikely because if the higher ranking court were to do so, the case that the lower ranking court had ruled would be deemed as a case that was decided wrongly and this would affect the credibility of the court. But the defendant could appeal against the case and the ruling would be reversed, the law would still remain the same and nothing would be changed.
When considering the system of precedent its first disadvantage to the system is there are over 150 high ranking judges and every sentence of every judgment that are made by these judges could be a potential precedent and be binding to the future judges so then it is extremely difficult to keep track of all this potential precedent. So there are private firms that attend hearing as law reporters or barristers and they weed out all the unimportant judgment so as to lower the vast number of judgment past.
But even with the law reporters and barristers discarding the unimportant judgment, there are still so many precedents that it is really difficult for a lawyer to find the law that he is looking for and so with internet now it is a lot easier to find all these precedents. The second disadvantage of the system is that even if a bad judgment is given it would live on for a very long time as a precedent. For example if the supreme court previously known as the house of lords made a bad decision it is binding on all other courts including future sitting of the house of lords.
So if a bad decision was made by the house of lord then before 1966, which could only be changed by the parliament which was far too busy to interfere unless a grave injustice was being caused by the decision. The third disadvantage would be that a vast number of precedents could take away the very certainty which the system is trying to promote. The fourth disadvantage is that the higher court are not able to interfere with the ruling of the lower court or the decisions made by the lower court unless the case is being appealed all the way to the particular court then the court would be able to overrule or modify an earlier precedent.
These are the disadvantages of the system of precedent. Now we are considering the advantages of the system of precedent. The first advantage is that the device of distinguishing a case meaning that the system of precedent is not entirely rigid. For example a judge who is lower down the hierarchy can refuse to follow an apparently binding precedent if he distinguishes it on its fact. The judge can say that the fact of the case he is considering are materially different from the facts of the case by which he appears to be bound its gives the judges a degree of flexibility to the system.
It allows the judges to escape the precedents which they few that is inappropriate to the case they are dealing with. The second advantage is that the precedents are usually high quality decision made by the high ranking judges, so the precedents set are good decisions that would be applied in all courts. For those busier and less experienced courts judges could use it as a guideline and do not have to give the same consideration as to whether the principles of law involved are right or wrong. The third and last advantage of the system of precedent is that it is consistent and certain.
Lawyers can predict the outcome of most cases, as the courts will have previously considered almost any legal problem and a precedent made. This certainty enables the vast majority of cases to be settled without the need to go to court. These are the advantages of the system of precedent. In conclusion, judges do not have the mandate of the people to make law. The legislature of the parliament makes law, as they are the ones that are elected by the people so they have the mandate of the people to do so.
Judges are merely interpreting the laws made by parliament. The primary function of the court is not to make law but to adjudicate. The mandate only goes to the legislature of parliament as the people elect them. Done by: Johansson Word count 2959 References 978-9-81068746-5, (2011), Introduction to Commercial Law, SMa Institute of Higher Learning, Joy Tan, Business Law (5th edition), Ewan MacIntyre, Business Law (4th Edition), Andy Gibson and Douglas Fraser