It will be discussed how various aspects of both statutory interpretation and doctrine of precedent help challenge the declaratory theory to prove that judges do in fact to some extent make law.

Distinguishing cases is used more commonly then the practice of overruling. Overruling is when a court higher up in the hierarchy changes a legal ruling from a previous case. An example of this can be seen in the case R v R in which the Court of Appeal overruled a centuries old common law that a man can not be guilty of raping his wife. Lord Keith stated that "This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it."   Lord Keith mentions that a new offence was not made but an evolution of common law due to social and cultural developments. The more apparent view of what the courts did in this case is that they did make a new offence thus creating new law. Lord Keith comments on this case represent the reluctance of courts to accept that they do in fact make law. He masks their decision by saying it was an evolution and not judicial law reform by overruling. Lord Keith mentions of having a duty to act, this statement could be seen as directly contradicting the constitutional role of the judiciary which is simply to declare the law.  Whether the courts evolved common law or created a new offence it is apparent they did more than just declare what the law was.

A major development undermining Blackstone’s declaratory theory of law was the 1966 Practice Statement by the House of Lords. Before the 1966 Practice Statement the House of Lords was bound by its own previous decisions. The use of the Practice Statement can be seen in R v. Shivpuri when the courts overruled Anderton v. Ryan on attempts to do the impossible. Lord Bridge stated in Shivpuri that "If a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better.”  The question arises was the law changed after Shivpuri with the use of the use of the Practice Statement? One view is that the law was not changed because the law before this case was incorrect meaning it was not law at all. However, this argument is countered by the fact that even though law before was incorrect that for some period of time it was law. Also the use of the Practice Statement shows that judges changed the law back because it was distorted.  Which ever argument is predominant a fact that is not debateable is that the Practice Statement allows freedom to judges to change and make new law.

Judges have flexibility to alter and make new law in cases of common law. The issue then arises of parliamentary statutes which reign supreme. Slapper and Kelly state it clearly when they mentioned “…role of the judiciary is to apply law. The function of creating law is the prerogative of the Parliament. As has already been seen, such a view is simplistic to the extent that it ignores the potential for judicial creativity in relation to the operation of common law and the doctrine of precedent. Equally, however it ignores the extent to which the judiciary have measure of discretion and creative power in the manner in which they interpret the legislation that comes before them.”

Apart from assistance provided by The Interpretation Act 1978 and acts passed after 1999 having special explanatory notes it is the judges discretion to interpret statues, usually three rules are used along side certain interpretation aids. The literal rule states that a statue should be given its ordinary meaning because it is the best way to interpret parliament’s intention. In the cases of Whiteley v Chappell and Fisher v Bell where the literal rule was applied it could be viewed has having undermined parliamentary intention because of the interpretation. However this rule does not allow judges power to make law but simply declare it. By taking the ordinary meaning of the words of a statute there is no opportunity or flexibility in interpreting statues to make new law.

However, following the literal rule when it leads to an absurd outcome can also be seen as creating new law which parliament had not intended. In these types of scenarios the golden rule can be implied which is seen as an extension of the literal rule. The golden rule states that when the literal meaning leads to an absurd result the judge can replace it with a reasonable meaning considering the entire statute. There are two applications of this rule which are narrow and wide. As seen in R v. Allen the narrow approach allows the courts to choose the possible meaning of words or phrases. Compared to the wider approach in which words of a statute have one meaning but lead to an outrageous result. In these cases the courts will modify the words of the statute as seen in Re Sigsworth. The golden rule like the literal rule does not allow judges much freedom to create law but more so to declare it and prevent from absurdities which may be caused by the literal rule. The last rule judges can depend on allows them more freedom to make law instead of declare.

The mischief rule was established in Heydon’s Case it allows judges to look at the law before the act in question was passed in order to fill the gap or mischief the act is supposed to rectify. Smith v Hughes is a great portrayal of where the courts used the mischief rule to make new law to include soliciting prostitution not necessarily on the street but directed to people on the street. This activity was not expressly stated in The Street Offences Act 1959 but interpreted by the judge to include this activity as well. The mischief rule provides flexibility to the court in interpretation but this rule has been criticised from originating from a point in time when drafting statues was not as clear and concise as it is today.

The purposive approach states that judges while interpreting a statute should look past the words of a statute and concentrate on the reason for enactment. Lord Denning in the case of Magor and St Mellons v Newport Corporation stated that “We do not sit here to pull the language of Parliament to pieces and make nonsense of it… we sit here to find out the intention of Parliament and carry it out, and we do this better by filling the gaps and making sense of the enactment than by opening it up to destructive analysis.” Lord Denning was heavily criticised by Lord Simonds who stated “filing in the gaps as a naked usurpation of judicial function under the guise of interpretation…If a gap is disclosed, the remedy lies in an amending act.” The purposive approach grants judges even more freedom than the mischief rule to interpret statutes. It allows them to overlook the words of an act and consider why parliament enacted a certain statute. Lord Simonds supports the idea that the use of this approach is undermining the judiciary’s function which is simply to declare law. The use of the purposive approach in recent decades is on the rise despite the criticism. This means that the judiciary with the use of the purposive approach are not just declaring law but making it and going beyond their constitutional role.

In conclusion, the notion that judges merely declare law and not make it with regards to the doctrine of precedent and statutory interpretation is incorrect to a certain extent. The obvious area when judges make law is when they are confronted with cases of original precedent. Also the practice of stare decisis is more flexible than in theory. This is seen when the courts creatively distinguish cases and by doing so develop and create new law by avoiding what may be previously binding authorities. Overruling is also a clear example of an area where judges make new law. By departing from an older decision no matter for what reason they still change the previous law thus making new law. The 1966 Practice Statement enables the House of Lords to change binding law when they see fit. The 1966 Practice Statement clearly undermines the view that judges only declare the law even though the courts sometimes are reluctant to use the statement. With regards to statutory interpretation judges have some freedom in creating new law. The literal rule and golden rule do not provide a great deal of opportunity to change the law. But the mischief rule and purposive approach allow a considerable more freedom to make new law. Also it is upon the judges’ discretion which approach they take to interpret a statute. Therefore, both the theories of statutory interpretation and the doctrine of precedent are not as rigid in practice. This flexibility allows judges the ability to make law without the use of parliament. Therefore, making the statement: “the role of a judge is to declare the law and not make it” untrue and outdated.

Bibliography

Radcliffe, V. (1968) Not in Feathers Beds, London: H. Hamilton,

Slapper, G. and Kelly D. (2004) The English Legal System, Australia: Cavendish Publishing

Elliott, C. and Quinn, F. (2008) English Legal System, Essex: Pearson Education Ltd,

Martin, J. (2002) The English Legal System, Oxon: Hodder Headline

Airedale NHS Trust v Bland [1993] AC 789

Merritt v Merritt [1971] 1 WLR 1121

Balfour v Balfour [1919] 2 KB 571

R v R [1991] 4 All ER 481  

Anderton v Ryan [1985] 2 All ER 355

R v Shivpuri [1986] 1 All ER 334  

Whiteley v Chappell [1868] 4 LR QB 147  

Fisher v Bell [1960] 1 QB 394

R v Allen [1872] LR 1 CCR 367

Re Sigsworth [1935] Ch 89

Heydon’s Case [1584] 3 Co Rep 7a

Smith v Hughes [1960] 1 All ER 859

Magor and St Mellons v. Newport Corporation [1950] All ER 1226

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