Judicial Creativity essay

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Introduction

Judicial precedent requires that judges apply the doctrine of stare decisis and follow any relevant ratio decidendi from higher courts and courts on the same level. However, when a new situation arises, a judge ma have to be creative because there is not yet a law which covers it. Some commentators have stated that judges in such cases are merely finding new law that already existed and applying it to new circumstances. Another theory, advanced b people such as Professor Hart and Lord Denning sees it as the judge's legitimate role to fill in any gaps and make new law when required. DONOGHUE V STEVENSON (1932) was a case in which the court was seen to make new law. Before this case it was unclear when consumers could claim in negligence for injury caused by products that they did not buy. This has since been developed further by judges to cover both psychological (MCLOUGHLEN V O'BRIEN) and pure financial (HEDLEY BYRNE V HELLER) damage.

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Judicial Precedent

Judges can also develop and change law by overruling past precedents. The Supreme Court can overrule itself using 1966 Practice statement. The Court of Appeal can overrule itself using the rules in YOUNG V BRISTOL AEROPLANE. All courts can overrule the precedents of lower courts. An example of overruling that developed the law was in R V R (1991) where a man was charged with the rape of his wife. Prior to this, it was held since 1763 that a woman gives consent to sex when she agrees to marry and cannot withdraw whilst she remains married. The last case on the issue was R v MILLER (1954) which upheld this reasoning. In R v R (1991) the Law Lords stated that it was time the law on rape in marriage changed according to advances in social and public morality therefore women now have to give consent to sex, even in marriage; this illustrates a potential advantage of judicial creativity. However, any changes to the law are retrospective and involve finding people guilty for acts that weren't unlawful when they did them. It also brings the cases decided under the previous precedent into question. Instead, Parliament makes law which only applies to the future. However, to leave the law as it was in R v R, allows the law to be seen as out of touch with modern morality. Also, it allows the law to keep up to date with changing times - As in R v R, creativity was good for the victim in this case, as the wife wasn't protected under existing law.

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Statutory Rules

Judges also have the power to develop the law when interpreting statutes using the rules of interpretation. Of those rules, the literal rule would appear to give the least room for creativity because the plain, ordinary, mechanical meaning must be used. It does not allow for any creativity because the judge follows the words of the statute mechanically, even if the result isn't what Parliament. Even this, however, is not always straightforward, as seen in FISHER v BELL. In this case, the judge applied a technical legal meaning to 'offer for sale' whereas most people would accept that a knife displayed in a shop window was an offer for sale. The golden rule is merely a extension of the literal rule and also restricts judges to just looking at the wording of the legislation. The mischief rule and purposive approach allow much more room to develop the law as judges can use extrinsic aids such as Hansard and Law reform reports to research the social and historical background of a case to try and discover its wider purpose. This ensures that law is kept up to date with technical and social changes. An example of the former was seen in RCN v DHSS in which the HOL held that the phrase 'registered medical practitioner' could apply to nurses so that they could supervise abortions. An example of the latter was demonstrated in FITZPATRICK V STERLING, in which, contrast to statutory laws, the HOL defined 'family' as including same sex couples, allowing a man to take over his late partners tenancy.

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Judge-made law

Some areas of the law are entirely judge made, the law on murder and involuntary manslaughter for example. The problem with allowing judges to develop the law in this way is that it is ad hoc, piecemeal and often haphazard. There were, for example, a string of cases dealing with the mens rea of murder starting with VICKERS (1957) and ending with WOOLLIN (1998), each of which made important changes. This could have been dealt with quicker ad more effectively by legislation enacted by Parliament following Law commission proposals. When judges create law they are concentrating on the outcome of a case in front of them whereas legislation on legal issues is usually the result of meticulous research, taking into account relevant context around the case. It is arguable that judicial development of the law is quicker as any changes come into effect instantly. On the other hand, this doesn't consider the length of time for a case to get to the appeal courts; the law in rape on marriage wasn't changed by the court of appeal until 1991.

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Unelected status of judges

A further problem with judicial law making is that it is undemocratic; judges are not elected and are unaccountable to anyone apart from other judges for their decisions. However, others argue that it is because they are unelected, that that are able to uphold the law independently without being unduly affected by public opinion.

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Conclusion

Overall, whether judicial law making is a good or bad thing, it is inevitable. This is because there are sometimes no previous precedents or legislation at hand, and the case before them must be resolved. If the outcome causes enough disapproval, Parliament still remains sovereign and has the power to legislate to change it.