• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

Law and Judicial creativity

Extracts from this document...

Introduction

'The rules of judicial precedent and statutory interpretation only appear to impose constraints on what judges may do. The truth is that judges can always find ways to develop the law in the directions they desire' Discuss the view quoted above. Include in your answer a comparison between the role of judges and that of Parliament in developing the law. Judicial precedent refers to judge made, or common, law. It operates on the principle of stare decisis, which means 'stand by the decision'. This is to ensure fairness and consistency in the law. Stare decisis is achieved by treating like cases alike and through the hierarchy of the courts, that is that lower courts are bound by the decision of higher courts. Statutory interpretation refers to saying exactly what the language of a statute means. It is up to the judges to apply statutes to current law and find Parliament's intention behind the Act. This is done through one of four approaches. As judges have to follow the principles of judicial precedent and statutory interpretation, it appears that there are constraints on what judges may do. However, several theories suggest otherwise perhaps because of the Practice Statement and the judges' choice of approaches when interpreting statutes. There are many theories of the importance of the judiciary and how judges exercise their power. ...read more.

Middle

Montesquieu believed the law could only be fair when the legislature (Parliament), the executive (cabinet, civil service) and the judiciary (judges) were separate, and did not intertwine. The aim being, that those who created the law would not have any say in how the law was enforced, and so no one group would be in total control of society. However, this has not always been the case in English law, judges do make law. Moreover, the role of Lord Chancellor (now abolished) meant that Lord Woolfe was a speaker in the House of Lords and a senior government minister, and yet headed the judiciary and was responsible for the selection of the judges. The overlap between the powers shows that there are not so many constraints on judges, as if this were so; they would not be law makers. As briefly mentioned, judges, like Parliament have the power to make laws. There are advantages and disadvantages of this. It is a lot quicker to introduce common law than statute law; legislation goes through a long process before coming law. This is important as the law must adapt to the changing needs of society and its morals. Also, as judges are seeing a case unfold before their eyes, they have a greater knowledge of how the law needs to be decided to see that justice is served. ...read more.

Conclusion

Overruling, reversing, distinguishing and the Practice Statement show that judges are often able to develop the law in the direction they desire, and that constraints can be overcome with these tools. However, it must not be forgotten that judges are subservient to Parliament and this can be considered to be the biggest constraint the judiciary face. Parliament must remain supreme, as they were democratically elected, judges were not. It can be said that even though Parliament was elected, they are often not personally responsible for the creation of law, as seen through the issue of delegated legislation. The delegation was not elected either, but there appear to be no qualms about law being created in that way. Also, judges can easily remain subservient to Parliament while choosing the direction to follow, for example, judges choose which approach to use in statutory interpretation, and this is what decides the outcome in all cases. As different approaches may have a different outcome in the same case, the judges role is highlighted here, as ultimately it is in their hands what the result will be. To conclude, the statement that judicial precedent and statutory interpretation only appear to impose constraints on what judges may do is true. Although the rules of both are clear cut, there is room for judicial creativity that can achieve the aims of both while also reaching justice. Parliament remains supreme, and although this may seem an even bigger constraint, the just decisions judges have been able to achieve in landmark cases suggest otherwise. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our AS and A Level Legal personnel section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related AS and A Level Legal personnel essays

  1. Marked by a teacher

    LAW REPORT on Macgregor(TM)s case

    4 star(s)

    be the subject of an allegation of negligence and subject to the receipt of further information about the state of the carpet and the reason for its condition it is advised that the hotel will be found liable on the basis of the matrix of authority laid out above.

  2. Marked by a teacher

    European law

    4 star(s)

    This has been described as the purposive or teleological approach. Thus in Van Gend en Loos Article 12 was interpreted in the light of the overall aims of the Community established by the EC Treaty. The court refers to the establishment of the common market, which suggests that the only

  1. Marked by a teacher

    Evaluate the extent to which judges are representative of society.

    3 star(s)

    There have been slightly more women being appointed lower down on the judicial ladder than in in the past, particularly in the number of female recorders at around 20%. Lord Chancellor Jack Straw, has recently talked of plans to open judicial posts to part-timers in a bid to attract more females who might have childcare issues.

  2. Police powers to grant bail

    The ECHR said s.25 was a breach of the right to a fair trial. So s.56 of the Crime and Disorder Act 1998 amended s.25 and said that bail can be granted in 'exceptional circumstances'.2 People who commit criminal offences whilst on bail are known as 'bail bandits'.

  1. Evaluate police powers of arrest, detention and search.

    especially under s.23, were used by the police on the basis of unsubstantiated presumptions about the tendency of particular ethnic or cultural groups to be in possession of illegal drugs and that a similarly prejudiced ethos would lead to the abuse of the much broader powers granted under PACE.

  2. Free essay

    Legal personnel

    Solicitors as well as barristers can also be sued for negligence where there is evidence that they have not performed properly. This was out lined in the case of Arthur JS Hall & Co v Simons (2000), and as a result both professionals are no longer immune from liability, (Martin, J.

  1. The task of the jury is to weigh up the evidence presented to them ...

    the verdict * It enables jurors to bring in unpopular verdicts Disadvantages * Educates the public * Make juries more accountable * Shows where reform is required * Ensures each juror had freedom of expression The Runiman Commission has recommended that the 1981 Act should be amended so that valid

  2. Explain (a) the process of selecting magistrates and (b) the work that they carry ...

    Or anyone with a disability that would prevent them being able to carry out their role. Magistrates sit on a bench of (normally) 3, and are assisted by a Clerk to the Court. Since the enactment of the Crime and Disorder Act 1998, certain pre-trial powers may be exercised by

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work