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Essay: Under what circumstances do judges make law?

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  • Subject area(s): Law essays
  • Reading time: 4 minutes
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  • Published: 21 February 2022*
  • Last Modified: 22 July 2024
  • File format: Text
  • Words: 1,123 (approx)
  • Number of pages: 5 (approx)
  • Tags: Statutory interpretation essays

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Some would be confident in saying that the law is not made up by the judges but more so upheld by them. The judges do not make the law primarily. They interpret it. The law is made by the parliament. The judges are able to modify the law and apply them to different cases and circumstances. The rules of statutory interpretation will support the fact that the law is not judge-made. However, there are some areas of the English law in which the judges have generally made in some cases. This is known as case law and judge-made law. In these cases, the judges have generally made the law in order to eradicate the inequality of unfair decisions. The Donogue v Stephenson case is perfect example of case law made up for this reason.
This essay will seek to establish why many people would agree with the statement given within the assessment brief. The argument will be supported with certain rules within the statutory interpretation of the English Legal System. The process of statutory interpretation includes the interpretation of different statutes by judges. There are three different rules within statutory interpretation and these rules consist of the mischief rule, the literal rule and lastly, the golden rule. The task for the statutory interpretation could prove to be indeed, very difficult for the judges and some factors could prove to be doubtful. The following factors are proven to be doubted by judges within the resource of F.A.R. Bennion (Statute Law, 1990).
The draftsman may refrain from using different words that he or she would often regard as implied and the problem here would often be that the users would probably not realise that this is the case. Also another factor that may be seen doubtful would be that the draftsman could use broad terms which is basically a word or phrase of wider meaning and this may leave the user in judging what situations may fall within the meaning of the term. Then, you have the factor of the possibility of ambiguous words which may be used and that there may also be unforeseeable developments within the interpretation. The last factor of the interpretation which may be seen as doubtful would be the fact that there are many types of wording of the draft which may be seen as inadequate and there may be errors which could misinterpret the meaning of the words within the draft. These factors are what make it difficult for the judges to use statutory interpretation in order to interprate law and legislation.
Now, referring back to whether judges make law or not, there are three circumstances and situations in which the judges could play some part in making the law and these three circumstances will be identified and explained as follows. The first circumstance in which the judges could make up the law would be Interpretation. We should now be all aware of the fact that the parliament of this country primarily makes the law. However, they can not define every term within a statute and this means that a judge is then required to interpret the statute so that it could then be applied to the case before the courts. For example, Bennion did criticise DPP v Jones (1999). Within this case, there was a demonstration on a road and the lords did look at the ruling of the fact that the general public were allowed and had the full right to use the highway for other purposes such as walking and passing but demonstrating and picketing were not within that ruling. The House of Lords then did state that the rule levied restrictions in which were unwarranted and unrealistic within everyday activities and that the highway was for use of reasonable purposes by the public.
The second circumstance would be seen and known as ‘filling in the gaps’ This is mainly when there was a conflict between the UK law and the EU law and often as a result of some of the decisions within the European courts, the House of Lords then developed a doctrine in which was allow some of the statutes to answer without totally abandoning the parliamentary supremacy. This so called development of the new doctrine then lead to various political instabilities which lead to changes fundamentally such as the break up between the UK constitution and the EU court of justice. As an example, cases like this often represent that judges must and need to be careful while changing their decisions within laws or even when making any law. The judges sometimes fail to do this and this is demonstrated within an important case from the past. The case of R v Dica (2004) shows that the court of appeal did overrule an earlier case and held that criminal liability could have indeed be imposed on the defendant for infecting another individual with the disease of HIV. This case was the R v Clarence (1888) case. This was then made to be an irrespective change in the law due to the fact that earlier on, the home office decided that legislation like this should not be introduced in the first place and that the legislation would impose liability in this situation. The Home Office then came to the conclusion that this was in fact a case of social and public health and not a criminal case like it was held to be originally.
The third circumstance in which the judges do make the law is within common law. There are several areas in which there is no statute law and in cases such as this there are judgements made by the judges which are influenced by judgements within previous cases. An example of this would be the Rylands v Fletcher case and due to this case, since 1966 the House of Lords have been able to reverse their own legal judgements and decisions.
To conclude, Lord Denning mentions in the ‘Reform of Equity’ that ‘judges make law every day, though it is almost heresy to say so’. This quote suggests that the judges make the law everyday however; it is not boasted upon when a law is reformed, changed or created. Judges often do not mention that the law has been changed or even created. The rules within the statute of interpretation suggest that the law is reformed and created by judges in several circumstances but not always. It is said that the Parliament set the primary foundations of the law and then the judge’s reform or interpret it which does make them a part in the making of the law which means in conclusion; it would only be fair to say that judges do make the law in several cases.

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