Law and Judicial creativity

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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. Blackstone, an 18th century legal commentator, states that judges do not make law; merely that the rules of precedent allow them to discover law that has always been there. New decisions simply mean that the decision overruled was not law - it was a wrong answer. This has been criticised for being an unrealistic view as law evolves over time, therefore what may have been the “right” decision at one point may have been thought to be unreasonable when applied in a future case. This was seen in the landmark case of R v R 1991, which held that rape within marriage constituted a crime, overruling a 250 year old rule. Back then, rape within marriage may have been considered impossible, as it may have been assumed that by marrying, a woman automatically gives consent to sexual intercourse. However, attitudes have since changed, and the decision in R v R reflected society’s changing morality, as women now have more rights, and rape is considered morally wrong. It is important for the law to reflect society’s changing attitude as this is the only way justice can be achieved. What may have been justice decades ago may not be the case now, and the law’s fundamental aim is to provide justice. It is up to judges to make sure this is done, and R v R shows that any constraints judges’ faced were overcome.

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        Kairys’ critical theory of law states that judges do have freedom in precedent, that their decisions are based on ‘a complex nature of social, political, institutional, experiential and personal factors’, and the precedents they reach reflect these views. This is true of Donoghue v Stevenson 1932, a significant development in the tort of negligence. The ‘neighbour principle’ established in this case was based on the Christian belief held by Lord Aitken. As this was original precedent based on the personal belief of one person (although shared by many at that time), it shows that judges often do not set precedents ...

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