Legal documents tend to be extremely complex and long winded. They use a variety of language styles from ordinary to technical jargon and on top of this they are often drafted by more than one person. So clearly the way in which words, and ultimately laws, are interpreted is extremely important if we are to have a judicial system that works smoothly and efficiently.
In order to avoid conflicts that may arise out of interpreting statutes, there are what are known as the three basic “rules” which are used by judges to interpret them. They are as follows:
- The Literal Rule;
- The Golden Rule;
- The Mischief Rule, (Purposive Approach)
Let us first take that of the literal rule. According to the literal rule, it is the task of the court to give the words to be construed their literal meaning regardless of whether this results in an absurdity or not. Therefore, this means that judges are not to deviate whatsoever from what has been written down by the draftsman in the statute and that regardless of how preposterous a result may ensue from this, he is to construe the legislation accordingly.
The golden rule on the other hand means that judges are to give words their ordinary meanings in the course of interpreting the statute before them, unless there is such an absurdity or inconsistency such as to convince the court that this was not the intention of Parliament and accordingly the court may interpret what it believes was intended instead.
Finally, the mischief rule, or purposive approach, is the last of the three rules that judges use in order to interpret what Parliament has put down in legislation and statutes. This rule is in place in order to find the “mischief” in the legislation that Parliament has set out. In other words, it is there to find the flaw or defect in the statute and from there the judge is intended to correct said flaw by interpreting what Parliament intended when the statute was drafted.
Do these rules therefore mean that judges for both systems of common and civil law can make law? Using the rules to interpret what Parliament has said seems to give the impression, particularly with reference to the golden and mischief rules, that they can make any decisions they wish to infer upon Parliament’s drafting, but at the same time the literal rule would not agree with this.
Along with these rules comes the basis of judicial independency. Judicial independence is a key principle of our constitution. It means that judges decide cases according to their own judgment, free from outside influence and not subject to the views or control of the Government.
A judge must administer justice in accordance with the law and according to the circumstances of the case before them, no matter how unpopular their decision may be at the time.
At the same time, judicial independence also means that one judge should be independent from another. This does not mean however, that judges are not allowed to seek advice from their fellow compatriots. Indeed, judges do and will take account of views expressed by other judges in other cases and they most take note of judgments given by higher courts which are binding. This is known as the doctrine of stare decisis, (or more precisely stare rationibus decidendis, keep to the decisions of past cases).
This doctrine of stare decisis means that lower courts and the judges therein, are bound by what a higher court has decided in a previous case. This is known as precedent. Courts are also binding upon themselves, except for the House of Lords, which was bound by its previous decisions up until 26th July 1966 when the Lord Chancellor, Lord Gardiner, announced on behalf of himself and all the other Lords of Appeal in Ordinary, that in future the House of Lords would regard itself as free to depart from its own earlier decisions.
However, despite this doctrine no judge, no matter how eminent he or she may be, is entitled to tell another judge how to exercise his or her judgment in any individual case.
So, it would appear that there is some leeway in the way in which a judge may interpret a piece of legislation put before him or her. Does this mean, however, that it can be said they are therefore making laws? Indeed, should a judge be able to make laws? Let us now discuss these matters further.
The role of the judge is seen by many as being very clear cut and simple. However, if you look at it in more detail, it becomes evident that it is not as simplistic after all. To begin with not all judges carry the same roles. There are some noticeable distinctions between the roles of the judge in common law jurisdictions and the roles of the judge in civil law jurisdictions.
It is important to consider the way in which the law has developed in the two different jurisdictions to enable the roles of the judge to be apparent. In a civil law jurisdiction, the law comes from a civil code which provides a consolidation of the law of the country. Whereas, the law in common law systems is developed on a case by case basis and it is also held in various statutes. Civil law jurisdictions, such as the French, also pay a great deal of attention to the theory of natural law, which is said to be God’s Law. This looks at the inner morality of law and is said to be superior to manmade law.
It can be said, therefore, that the roles of judges in civil law jurisdictions are stricter than in common law systems, because common law judges depart from statutes more freely than civil law judges do with codes. Codes in civil law are used more frequently and are given more importance and as a result a judge in civil law jurisdictions is meant to stick to the written law more.
In the French Civil Code, for example, it says, “Judges are forbidden to decide cases submitted to them by way of general and regulatory provisions.” As a result, this means that French judges are not allowed to make any law in any way, nor are they allowed to lay down any principles no matter how general.
In fact, their hands are tied even more by the Civil Code, as can be seen in Article Four, which states, “A judge who refuses to give judgment on the pretext of legislation being silent, obscure or insufficient, may be prosecuted for being guilty of a denial of justice.” Therefore, French judges have no option but to make decisions based on legislation and statute and must find an answer that complies with it for fear of being accused otherwise of causing a miscarriage of justice.
It is said that the first role of a judge is to administer justice according to the law. Indeed, in Lord Patrick Devlin’s book The Judge, he states that, “The first – ought one to say the whole? – duty of the English judge is to administer justice according to the law.” Therefore, it begs the question: should judges make law?
Upon this subject, opinion is widely divided and varied. Judges make decisions in court every day based on what is put before them. They may not always, in the layman’s or even the professional’s view, get it right, but they do their utmost to ensure that justice is carried out for the benefit of all parties.
People argue that it is not the remit of judges to make law and that they should just stick to following the letter of the law and not deviate from the legislation set down by Parliament. However, this makes the law inflexible. It may, as pointed out above, result in absurdities being carried out and injustices occurring as a result.
On the other hand, when a judge interprets what has been put before him or her, whether it be by using the literal, golden or mischief rules, or even by coming to a new conclusion themselves, this surely helps the law to move with the times. It enables the law to blossom and develop and to change with how society develops.
One of the most notable developments in how law was changed by judicial ruling to fit with society’s views can be seen in the case of R v R [1992] 1 A.C. 599, in which a man was accused of marital rape against his wife. Here, Lord Keith noted that, “The common law is, however, capable of evolving in the light of changing social, economic and cultural developments.” Ultimately, the case ended with the House of Lords seeing fit to abolish the then 256-year-old law against a charge of marital rape.
Between the two jurisdictions of both common law and civil law there are some clear differences as have been pointed out. Civil law judges, such as those in France, are expected to follow the code. Failure to do so will breach the regulations as set out in their own Civil Code, which could ultimately result in serious consequences such as being prosecuted for denying justice.
Common law judges on the other hand are free to interpret and tweak their interpretations as they go along. As long as they follow the rules of stare decisis and precedent they are free to decide more liberally on the intention of Parliament in the course of their rulings. They can do this without fear of prosecution or retribution, but that does not mean that they may always arrive at the correct decision.
Judges are there to interpret the law as laid before them. The system of common law in England and Wales is tried and tested, but it is coming under closer scrutiny from EU law. Indeed, a lot of our legislation now has to be interpreted in accordance with the Human Rights Act 1998. So, there is a joining of the two systems of civil law and common law when we come to look at and interpret legislation today.
According to s3.(1) of the Human Rights Act 1998, “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” Here it is clear that the civil jurisdiction of Europe is working in conjunction with our common law jurisdiction, without our system feeling as though we have lost the upper hand.
In fact, to ensure that we do not feel as though our jurisdiction is being undermined, s3.(2)(b) & (c) even go as far as to say that our primary legislation is still supreme no matter what and s4 allows for a declaration of incompatibility to be decided in areas where our legislation may be incompatible with the Human Rights Act. Our judges still have the ultimate deciding factor in how the legislation is interpreted.
Ultimately, one feels that as long as there are laws, statutes, legislation and indeed a legal system, one will always require the expertise of a lawyer or a judge to interpret the meanings of those materials and to argue over the minutiae of the meaning of a word. Otherwise, what would stop the ordinary layman from representing him or herself at court and doing away with those of us involved in the legal system? Heaven forbid that should happen!
Bibliography
Michael Zander, The Law-Making Process, Sixth Edition, Cambridge University Press, 2004;
P. Devlin, The Judge, First Edition, Oxford University Press, 1981;
The Times, July 2nd 1996, Gary Slapper on why judges & politicians are at odds over who makes the law: Should the judges or MPs make the laws?;
The French Civil Code;
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The Human Rights Act 1998;
LexisNexis® R v R [1992] 1 A.C. 599;
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;
Michael Zander, The Law-Making Process, Sixth Edition, Cambridge University Press, 2004, pg. 127
Michael Zander, The Law-Making Process, Sixth Edition, Cambridge University Press, 2004, pg. 128
Article 5 of the French Civil Code
Article 4 of the French Civil Code
P. Devlin, The Judge, First Edition, Oxford University Press, 1981, pg. 84
R v R [1992] 1 A.C. 599 at 616
Human Rights Act 1998 s3.(1)
Human Rights Act 1998 ss3 & 4
