Judicial Creativity

Judicial Creativity

1. Judicial Precedent

   • Allows judges to make law
   • Doesn't allow judges to make law

2. Statutory Interpretation

   • Doesn't allow judges to make law
     • Literal Rule
       • Literal rule is the first rule
       • The words of the statue are given their natural, ordinary, dictionary meaning
         • Lord Reid in Pinner v Everett: The first question to always ask is what is the ordinary, dictionary definition of a word, even if it creates an absurd result
         • Harriss- A stab, cut and wound is not biting'
           • Fisher v Bell- Offers are not goods on display
             • Whitely v Chapell- Living is not death
       • Doesn't allow law to be made as it takes the law by its most basic meaning
     • Golden Rule (Narrow Approach)
       • Where judges use a different definition of that word
         • Pepper v Hart- Golden rule limits the amount of material which could be used when interpreting the actions of Parliament
   • Allows judges to make law
     • Mischief Rule
       • Mischief rule is the oldest rule, it was established in Heydon's case in 1584 which asks 4 questions
         • 1) What was the common law before making the act?
           • 2) What was the mischief (problem) with the old law?
             • 3) What remedy has parliament provided?
               • 4) What is the true reason for parliament making the remedy?
       • Can only be used when there is ambiguity in the state
     • Golden Rule (Broad Approach)
       • Allows judges to modify definitions if it could lead to an unjust outcome
         • Adley v George
         • Bedford v Bedford- The golden rule should be used to prevent an undesirable result
       • If a word has multiple meanings then the judge can choose their preffered meaning
     • Purposive Approach