Judicial Law Making and Statutory
Interpretation
What is judicial law making?
Judicial law making is when judges develop the law through the decisions they make in cases.
Judges do not usually create completely new laws in the same way Parliament does. Instead,
they interpret existing laws and develop legal principles when dealing with new situations.
Judicial law making is closely linked to the doctrine of precedent. Decisions made by higher
courts can become binding on lower courts, meaning that judges may be required to follow legal
principles established in earlier cases.
Judges can also develop the common law when Parliament has not created legislation covering
a particular situation.
What is statutory interpretation?
Statutory interpretation is the process judges use to work out what Parliament meant when the
wording of an Act is unclear, ambiguous or capable of having more than one meaning.
The main approaches you need to know are the literal rule, golden rule, mischief rule and
purposive approach.
Judges can also use internal aids and external aids to help them understand legislation.
Judicial Law Making
1. Donoghue v Stevenson [1932]
Case facts
Mrs Donoghue was drinking ginger beer when she discovered that it allegedly contained a
decomposed snail. She became ill and wanted to take legal action against the manufacturer.
The problem was that she had not bought the drink herself, so there was no direct contract
between her and the manufacturer.
Case principle
, The House of Lords established the neighbour principle. This helped create the modern law of
negligence and established that people should take reasonable care to avoid harming those
who could reasonably be affected by their actions.
Why remember it?
This is one of the clearest examples of judges developing the common law.
2. Gillick v West Norfolk and Wisbech Area Health
Authority [1986]
Case facts
The case concerned whether doctors could give contraceptive advice and treatment to people
under 16 without getting permission from their parents.
Case principle
The House of Lords established the idea of Gillick competence. A child under 16 can consent to
medical treatment if they have enough understanding and intelligence to understand what is
involved.
Why remember it?
It shows how judges can develop the common law to respond to changing social circumstances.
3. R v R [1991]
Case facts
A husband was charged with raping his wife. Historically, the common law had recognised an
outdated rule that a husband could not be guilty of raping his wife.
Case principle
The House of Lords decided that the old marital exemption no longer existed. A husband could
therefore be guilty of raping his wife.
Why remember it?
It demonstrates how judicial law making can allow the common law to develop alongside
changes in society.
Interpretation
What is judicial law making?
Judicial law making is when judges develop the law through the decisions they make in cases.
Judges do not usually create completely new laws in the same way Parliament does. Instead,
they interpret existing laws and develop legal principles when dealing with new situations.
Judicial law making is closely linked to the doctrine of precedent. Decisions made by higher
courts can become binding on lower courts, meaning that judges may be required to follow legal
principles established in earlier cases.
Judges can also develop the common law when Parliament has not created legislation covering
a particular situation.
What is statutory interpretation?
Statutory interpretation is the process judges use to work out what Parliament meant when the
wording of an Act is unclear, ambiguous or capable of having more than one meaning.
The main approaches you need to know are the literal rule, golden rule, mischief rule and
purposive approach.
Judges can also use internal aids and external aids to help them understand legislation.
Judicial Law Making
1. Donoghue v Stevenson [1932]
Case facts
Mrs Donoghue was drinking ginger beer when she discovered that it allegedly contained a
decomposed snail. She became ill and wanted to take legal action against the manufacturer.
The problem was that she had not bought the drink herself, so there was no direct contract
between her and the manufacturer.
Case principle
, The House of Lords established the neighbour principle. This helped create the modern law of
negligence and established that people should take reasonable care to avoid harming those
who could reasonably be affected by their actions.
Why remember it?
This is one of the clearest examples of judges developing the common law.
2. Gillick v West Norfolk and Wisbech Area Health
Authority [1986]
Case facts
The case concerned whether doctors could give contraceptive advice and treatment to people
under 16 without getting permission from their parents.
Case principle
The House of Lords established the idea of Gillick competence. A child under 16 can consent to
medical treatment if they have enough understanding and intelligence to understand what is
involved.
Why remember it?
It shows how judges can develop the common law to respond to changing social circumstances.
3. R v R [1991]
Case facts
A husband was charged with raping his wife. Historically, the common law had recognised an
outdated rule that a husband could not be guilty of raping his wife.
Case principle
The House of Lords decided that the old marital exemption no longer existed. A husband could
therefore be guilty of raping his wife.
Why remember it?
It demonstrates how judicial law making can allow the common law to develop alongside
changes in society.
