Judicial Creativity

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Judicial Creativity Essay

        Judicial Creativity is where judges develop and shape the law. This occurs as a result of their interpretation of statutes and following of the rule of precedent whilst deciding cases – either departing from decisions in earlier cases or applying existing principles to new situations. Under the rules of precedent, decisions from the appellate courts (House of Lords, Court of Appeal and High Court) have a binding influence over the judges in lower courts – they must follow the higher courts over previously decided principles. Persuasive precedent also exists through obiter dicta statements from the HL or CA, from courts in other jurisdictions as well as rulings from the Privy Council. It was held in the 19th century that judges didn’t make law; they simply declared it. (Lord Esher – Willis v. Baddeley [1892]) However, this was dispelled by Lord Reid in 1972, who stated that “we don’t believe in fairy tales anymore so we must, for better or for worse, accept that judges do create law”

Judges are creative in many ways, primarily though, through the interpretation of statutes. Usually, judges apply the statute law to the case they’re dealing with, especially if it is clearly worded and unambiguous, and then it’d be applied word for word. However, when a case arrives before a judge and where a literal interpretation would result in injustice, the judge must utilise a different rule of interpretation such as the Golden Rule (R v. Allen) or the Mischief Rule (Smith v. Hughes), this allows a degree of creativity in the application of the law.

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The Golden Rule allows the judge to depart from the original meaning of the Act in order to avoid an unjust result. Adler v. George saw “in the vicinity of” come also to mean inside of as well as in the environs of.

The Mischief Rule aims to identify the “mischief” that the Act was passed to prevent and adjust their decision as appropriate. The rule was established in Heydon’s Case (1584) and is also known as the British Rule. The case of Royal College of Nursing v. DHSS provides an excellent example of what the Mischief Rule was intended to do. Due to ...

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