Critically analyse the extent to which judges can and should be creative in developing the law through the operation of the doctrine of judicial precedent and the interpretation of statutory rules? Do Judges Make Law?

· This is arguable. It seems from many decisions that judges are making new laws or filling in the gaps in old laws. When a new situation arises, a judge may have to be creative and make law because there is not yet a law which covers it, as with new technology and medical advances. However, not everyone accepts that judges make law.

· Some say that judges make law and that this is a good thing:

o Professor Hart was of this opinion and said that as rules are often uncertain and have an ‘open texture’, judges must ‘fill in the gaps.’

o Lord Denning was a judge who agreed with Hart that judges needed to fill any gaps in the law. He was in favour of creativity by judges.

o Others say judges do not make law, but only apply existing principles to new facts. An academic who was strongly opposed to Hart, Ronald Dworkin, thought this.

Haphazard

· Some areas of law are still entirely judge-made. For example, the law on murder and involuntary manslaughter is case law. The problem with allowing judges to develop the law is that it is often haphazard, as the law can only develop if a relevant case is appealed to the superior courts who can set a binding precedent. There is a line of important cases dealing with the mens rea of murder and the meaning of intention, starting with VICKERS in 1957 and ending with WOOLLIN in 1998. This could have been dealt with more quickly and effectively by Parliament enacting the recommendations of the Law Commission.

Undemocratic

· Another problem with judicial law making is that it is undemocratic; judges are not elected and are unaccountable to the electorate for their decisions. However, others argue that it is because they are unelected that they are able to uphold the rule of law independently, without undue concern for public opinion or disapproval from the media.

Inconsistency

· The rules of statutory interpretation may lead to different results – FISHER v BELL. If different judges use different rules of interpretation there will be inconsistency in the law and this is not a good thing. This is also true of distinguishing, where different judges may see different facts as material.

· Example - Literal Rule - This does not allow for any creativity because the judge follows the words of the statute mechanically even if the result is not what was intended by Parliament. In FISHER v BELL (1961) the words ‘offer for sale’ were interpreted in strict accordance with contract law, so that a flick-knife in a shop window was not technically an offer for sale. This meant the shop owner was not guilty of offering a weapon for sale.

Certainty and Consistency

· The need for certainty and consistency supports following the letter of the law, using the strict rule of precedent and the literal rule where possible. However, justice in a particular case may indicate a need for judges to be creative. In G AND R the boys did not recognise the risk of the fire spreading so it was not fair, or just, to ask what a reasonable adult would foresee and so this objective test for recklessness was abolished by the House of Lords.

· Example - Overruling - This rule of precedent allows the judges to be creative as a new law is made and the old overturned. The Practice Statement gives wide discretion to the Supreme Court and allows an old law set by our highest national court to be changed and a new one created. An example of this was seen in G AND R (2003), where the decision in MPC v CALDWELL (1982) was overruled by the House of Lords and a new law was created that made the test for recklessness subjective for all crimes. However, not many cases get to the Supreme Court and also the use of the Practice Statement has been kept to a minimum for the sake of consistency.. Further, the rules in YOUNG v BRISTOL AEROPLANE are limited so only allow a little judicial creativity in making new law.

Retrospective

· Another argument against creativity is that judge-made law applies retrospectively, at least to the parties in court. A criminal law example of this is R v R (1991) where at the time D acted his conduct was not a crime because it was not possible to rape your wife, so he would not have been guilty under the existing law. In the civil law case of DONOGHUE v STEVENSON, at the time the snail got into the ginger beer bottle a manufacturer did not owe a duty of care to a consumer, so would not have been liable under the existing law. Parliament makes law which generally speaking only applies to the future, i.e. a certain behaviour is prohibited from now on.

Changing with Times

· A strong argument for creativity is that the law can keep up with changing times. Both R v R and DONOGHUE v STEVENSON can be used to support an argument that creativity was good for the victims in each case, because under the existing law neither a wife nor the consumer were protected. Also, if Parliament does not approve of the judgment it can pass a statute to overrule it.

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Conclusion

· Whether it is a good or a bad thing, judicial law making is inevitable, because sometimes there is no precedent or statute on the issue at hand, and the case before the court must be resolved.

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Concepts of Law Essay