Unit 2 D1
Evaluate the role of the judiciary in the formulation and interpretation of legal rules
Law comes from two main sources in this country, one is from Parliament, and
the second is from the courts. Acts of Parliament will come before the courts at
some stage in their life in the form of a case, judges must then interpret the act
and apply it in a way that it successfully deals with the gap in the law that it was
trying to cover. Judges cannot make law on their own, they must wait for a case
to come before them in court where they can make a decision based on an
interpretation of the law. But due to precedent, the decision they make becomes
law through precedent. This is judge-made law.
The judiciary are not able to create law directly; they can only interpret the law
and decide on it when a case presents itself before parliament. They have many
ways of dealing with interpretation of the law. There are two main approaches
that judges use to interpret law – the literal approach and the purposive
approach. There are also three rules that they use to interpret law – the literal
rule, the golden rule and the mischief rule.
Statutory interpretation and judicial precedent are two very important aspects in
law made in the courts, judicial precedent is how the decision becomes a sort of
law, while statutory interpretation is how the judges come to that decision.
Statutory Interpretation
Many cases come before the courts because there is a dispute over the meaning
of an Act of Parliament. In such cases the court’s task is to decide the exact
meaning of a particular word or phrase. There are many reasons why meaning
may be unclear:
A broad term – There may be words designed to cover several possibilities;
this can lead to problems as to how wide this should go. In the Dangerous
Dogs Act 1991 there is a phrase ‘any dog of the type known as the pit bull
terrier’. This seems like a simple phrase but has led to problems. What is
meant by type, does it mean the same as breed? In Brock v DPP 1993 this
was the key point in dispute and the Queen’s Bench Divisional Court
decided that type had a wider meaning than breed. It could cover dogs
which were not pedigree pitbull terriers, but had a substantial number of
the characteristics of such a dog.
Ambiguity – This is where a word had two or more meanings; it may not be
clear which meaning should be used.
A drafting error – The Parliamentary Counsel who drafted the original Bill
may have made an error which has not been noticed by Parliament; this is
particularly likely to occur where the Bill is amended several times while
going through Parliament.
New Developments – New technology may mean that an old Act of
Parliament does not apparently cover present day situations. This is seen
in the case of Royal College of Nursing v DHSS 1990 where medical
science and methods had changed since the passing of the Abortion Act in
1967.
Changes in the use of language – The meaning of words can change over
the years. This was one of the problems in the case Cheeseman v DPP
1990.
, Statutory interpretation is needed because the wording or phrases used in Acts
cannot apply to every situation, the wording can be too ambiguous or society
could have developed since the Act was introduced. These circumstances
present a need for Judges to interpret the law and what Parliament meant to
achieve when they passed the Act. The two approaches and three rules used to
interpret the law can produce varying results, the literal approach produces
easily predicted results which creates certainty in the law but can also create
unjust or absurd situations such as in the Whiteley v Chappell case. The
purposive approach creates more just outcomes such as the Smith v Hughes
case, but can create uncertainty in the law as the verdict will be based on the
judges own opinion of the law and what it meant to achieve, it can also lead to
judicial law-making wherein judges will create a precedent based on their own
opinion. Both approaches have their own criticisms. But without statutory
interpretation it would be impossible to apply the law properly and justly because
of the complex and ambiguous wording/phrasing of acts.
Judicial Precedent
The English system of precedent is based on the Latin maxim stare decisis et
non quieta movere (shortened to Stare Decisis). This means to stand by what
has been decided and do not unsettle the established. This supports the idea of
fairness and provides stability and certainty in law.
The Doctrine of Precedent
Precedent can only operate if the legal reasons for past decisions are known. At
the end of a case there will be a judgement and a speech will be given stating
the reasons for the decision, the principles of law he is using to come to this
decision are explained – these are an important part of the Ratio Decidendi
(which means the reasons for deciding). This is what creates a precedent for
judges to follow in future cases. The Ratio Decedendi forms a precedent. A major
problem in reviewing precedent in past cases is to separate the ratio decedendi
from the obiter dicta as older judgements are usually given in a continuous form.
The obiter dicta is a judge’s own speculation and thoughts on a case and does
not have to be followed as precedent however obiter dicta from previous cases
can be used by either the prosecution or defence.
Original Precedent if the point of law in a case has never been decided before
then the judge’s decision on this new point of law will form a precedent for future
cases to follow. It is an original precedent because there are no past cases to
follow/base his decision on. Judges may look at cases similar to it to aid his
decision but he will be making an original precedent. The way of arriving at a
judgement on an original precedent is called reasoning by analogy.
Binding precedent is a precedent from an earlier case which must be followed
even if the judge in the latter case does not agree with the legal principle. A
binding precedent is only created when the facts of the second case are
sufficiently similar to the original case and the decision was made by a court that
is senior to the current court e.g appellate court or Supreme Court. Sometimes
the court will be on the same level eg Crown Court.
Evaluate the role of the judiciary in the formulation and interpretation of legal rules
Law comes from two main sources in this country, one is from Parliament, and
the second is from the courts. Acts of Parliament will come before the courts at
some stage in their life in the form of a case, judges must then interpret the act
and apply it in a way that it successfully deals with the gap in the law that it was
trying to cover. Judges cannot make law on their own, they must wait for a case
to come before them in court where they can make a decision based on an
interpretation of the law. But due to precedent, the decision they make becomes
law through precedent. This is judge-made law.
The judiciary are not able to create law directly; they can only interpret the law
and decide on it when a case presents itself before parliament. They have many
ways of dealing with interpretation of the law. There are two main approaches
that judges use to interpret law – the literal approach and the purposive
approach. There are also three rules that they use to interpret law – the literal
rule, the golden rule and the mischief rule.
Statutory interpretation and judicial precedent are two very important aspects in
law made in the courts, judicial precedent is how the decision becomes a sort of
law, while statutory interpretation is how the judges come to that decision.
Statutory Interpretation
Many cases come before the courts because there is a dispute over the meaning
of an Act of Parliament. In such cases the court’s task is to decide the exact
meaning of a particular word or phrase. There are many reasons why meaning
may be unclear:
A broad term – There may be words designed to cover several possibilities;
this can lead to problems as to how wide this should go. In the Dangerous
Dogs Act 1991 there is a phrase ‘any dog of the type known as the pit bull
terrier’. This seems like a simple phrase but has led to problems. What is
meant by type, does it mean the same as breed? In Brock v DPP 1993 this
was the key point in dispute and the Queen’s Bench Divisional Court
decided that type had a wider meaning than breed. It could cover dogs
which were not pedigree pitbull terriers, but had a substantial number of
the characteristics of such a dog.
Ambiguity – This is where a word had two or more meanings; it may not be
clear which meaning should be used.
A drafting error – The Parliamentary Counsel who drafted the original Bill
may have made an error which has not been noticed by Parliament; this is
particularly likely to occur where the Bill is amended several times while
going through Parliament.
New Developments – New technology may mean that an old Act of
Parliament does not apparently cover present day situations. This is seen
in the case of Royal College of Nursing v DHSS 1990 where medical
science and methods had changed since the passing of the Abortion Act in
1967.
Changes in the use of language – The meaning of words can change over
the years. This was one of the problems in the case Cheeseman v DPP
1990.
, Statutory interpretation is needed because the wording or phrases used in Acts
cannot apply to every situation, the wording can be too ambiguous or society
could have developed since the Act was introduced. These circumstances
present a need for Judges to interpret the law and what Parliament meant to
achieve when they passed the Act. The two approaches and three rules used to
interpret the law can produce varying results, the literal approach produces
easily predicted results which creates certainty in the law but can also create
unjust or absurd situations such as in the Whiteley v Chappell case. The
purposive approach creates more just outcomes such as the Smith v Hughes
case, but can create uncertainty in the law as the verdict will be based on the
judges own opinion of the law and what it meant to achieve, it can also lead to
judicial law-making wherein judges will create a precedent based on their own
opinion. Both approaches have their own criticisms. But without statutory
interpretation it would be impossible to apply the law properly and justly because
of the complex and ambiguous wording/phrasing of acts.
Judicial Precedent
The English system of precedent is based on the Latin maxim stare decisis et
non quieta movere (shortened to Stare Decisis). This means to stand by what
has been decided and do not unsettle the established. This supports the idea of
fairness and provides stability and certainty in law.
The Doctrine of Precedent
Precedent can only operate if the legal reasons for past decisions are known. At
the end of a case there will be a judgement and a speech will be given stating
the reasons for the decision, the principles of law he is using to come to this
decision are explained – these are an important part of the Ratio Decidendi
(which means the reasons for deciding). This is what creates a precedent for
judges to follow in future cases. The Ratio Decedendi forms a precedent. A major
problem in reviewing precedent in past cases is to separate the ratio decedendi
from the obiter dicta as older judgements are usually given in a continuous form.
The obiter dicta is a judge’s own speculation and thoughts on a case and does
not have to be followed as precedent however obiter dicta from previous cases
can be used by either the prosecution or defence.
Original Precedent if the point of law in a case has never been decided before
then the judge’s decision on this new point of law will form a precedent for future
cases to follow. It is an original precedent because there are no past cases to
follow/base his decision on. Judges may look at cases similar to it to aid his
decision but he will be making an original precedent. The way of arriving at a
judgement on an original precedent is called reasoning by analogy.
Binding precedent is a precedent from an earlier case which must be followed
even if the judge in the latter case does not agree with the legal principle. A
binding precedent is only created when the facts of the second case are
sufficiently similar to the original case and the decision was made by a court that
is senior to the current court e.g appellate court or Supreme Court. Sometimes
the court will be on the same level eg Crown Court.
