Describe the approaches and tools available to judges for statutory interpretation. Discuss whether these give judges too much power.
9084/11/M/J/16 . Describe the approaches and tools available to judges for statutory interpretation. Discuss whether these give judges too much power. [25] The issue in this question is to describe the approaches and tools given by statutory interpretation to be used by judges, and also to discuss whether that statutory interpretation gives judges too much power. Statutory interpretation is the various methods and tests used by the courts for determining the meaning of law. It involves the application of certain rules and presumptions. A statute may need interpretation if the Act is badly drafted, or because the subject matter of the act is complex, or when errors are inevitable. The role of the judges is to interpret statutes and Acts of Parliament and apply them to cases that they preside over. Despite the aids included inside the statute i.e. interpretation, sections, and the passing of the Interpretation Act 1978, the courts may still find statute to be unclear when there are problems by draftsmen, such as when broad terms are used - there may be words designed to cover several possibilities; this can lead to problems as to how wide this should go. Other problems are errors in wording, changes in the use of languages- the meaning of words can change over the years, uncertainty, ambiguity and absurdity. There are two kinds of approaches: Literal Approach and Purposive
Judges As Lawmakers
Business Law Judges As Lawmakers The power to make law belongs to the legislatures, judges can only apply that law to decide cases. Neither the judges have the power to make law, nor the courts have that power. That puts the whole issue of judicial activism in another perspective. Judges are overstepping their role by making law rather than only interpreting the right way the already existing one and applying it. When the law does not state clearly what can and what can not be done, it's the judges job to clarify it and not by all means to make a whole new one, as it often happens. Let's say "common law" includes every area of law where judges rather than legislatures have made most of the rules, and let's say that "statute law" is where legislators are the lawmakers. Common and statutory law, are very different. Common law is a network of concepts. One could phrase those concepts in many different ways, but they would still be the same concepts. The law is in the concept, not in the choice of words. Statutory law is not like that. When creating or using a statute, one has to use the exact words. If other words are used, he or she will almost certainly be changing the law. When judges decide cases governed by statutes, they generally assume that the legislature had a good reason for reaching the policy conclusions expressed in the law. The decisions of the highest
Are judges independent
Are judges independent? A power passed by a French political theorist called Montesquieu states "that there are three primary functions of the state and that the only way to safeguard the liberty of the citizens is by keeping these here functions separate." The three main powers that ach group has is; . The legislature. This is the law-making area of the state or In England the Parliament. 2. The executive or the body administering the law. Under the British political system this is the government of the day which forms the Cabinet. 3. The judiciary who apply the law. The judges Independent and separate bodies can check on each others powers and this will limit the amount of power each group will have. The ministers forming government also sit in Parliament and are active in law making decisions process these members are also part of the Legislative and executive area of the governing body of the country. Excluding them from government corruption. Judges are not allowed to get involved in making the laws that take place within parliament. Full time judges are not allowed to sit in the House of Commons but are allowed to become involved in joining the House of Lords in its legislative function as the Law Lords are life peers and can take part in debates on new laws being passed. Superior judges are presumed to be independent because they cannot be dismissed by the
Judges Make Law
To what extent in practice, however do the judges have the potential for creating law? The traditional view of the law making process is that Parliament makes the law through acts of parliament and delegated legislation and judges merely apply it in court to the cases presented before them. There are now opportunities that Judges do make the law or influence it, and these are through separation of powers, Judicial Precedent, cases and statutes. The Separation of Powers is a concept of government whereby power is divided among the executive, judicial, and legislative bodies. The executive represents the government the police and civil servants; the legislative power is parliament; and the judicial authority is made by the judges. This is so that one central system doesn't have all the power. "There is in any case, high judicial authority for claiming that the separation of powers is an essential element in the constitution of the UK. R v Hinds 1, where the appellant, brandishes a gun, ordered ambulance personnel surrounding the entrance to an ambulance to move. He then shot a man who was lying on a stretcher. Let's critically consider Judicial Precedent and how that amounts to judges making the law or just merely applying it. Case law comes from the decision made by judges in the cases they try, the decision is known as the judgement. The legal principle on which judges
Judges & The Judiciary
Judges & The Judiciary There are several levels of judges. All judges are required to be independent from government or political pressures. The Lord Chancellor who is responsible for the judiciary whilst being a member of parliament conflicts with the idea of separation of powers. Appointment and selection The Lord Chancellor appoints judges for the lower level courts and nominates people for the higher levels. The judges of the court of appeal and the house of lord the prime minister makes the nomination however this would be on the recommendation of the Lord Chancellor. Adverts are placed in the judiciary office for high court judges and lower. High court judges are still selected by invitation. The Courts and Legal Services Act 1990 sets out the relevant qualifications required to become a judge at any level. A candidate must have qualified as a barrister or solicitor. To become a judge in the high court and above the candidate must hold full advocacy rights. Training judges is the responsibility of the Judicial Studies Board. Training is normally just one day or a short course. This is to keep judges up to date with developing and changing laws, precedents, human rights, racial awareness, etc training is however very limited due to available time. One of the judiciaries main criticism is that is it made up nearly completely of white, middle aged, middle
judges There are several levels of judges. All judges are required to be independent from government or political pressures
Assignment 8.16 A.) There are several levels of judges. All judges are required to be independent from government or political pressures. The Lord Chancellor use to be responsible for the judiciary. Just as the English court system has a hierarchy so do its judges. (See below) Lord Chancellor Law Lords (sit in the HOL and Privy Council) 35 Lord of justices of Appeal (Court of Appeal) 06 Full-time judges (sit in the High Court and hear serious criminal cases in the Crown Court) Circuit Judges (sit in County Court and hear middle ranking Crown Court cases) District Judges (less serious Crown Court cases) Recorders (Part time judges, least serious Crown Court cases) To become a Law Lord you need 2 years judicial office and 15 years rights of audience in the Supreme Court. Will also apply to Scottish or Northern Irish judges. The appointment procedure to become a Law Lord involves the Lord Chancellor recommending Senior Lord Justices or Court of Session judges (Scottish) and Northern Irish judges to the Prime Minister. After consultation with all existing Law Lords and Heads of Division. To become a Lord Justice of Appeal you will again require 10 years rights of audience in the High court. To become a Lord Justice of Appeal you are invited to consider promotion by the Lord Chancellor, who then seeks opinions from Law Lords and Senior Lord Justices. Then the Lord
Are Judges Politicians In Disguise?
Are judges politicians in disguise? When reviewing the functions of the judges, and how and why decisions are made, there are many factors which should come into consideration. The judicial branch should interpret the law and constitution, and to make neutral and impartial decisions. Judges, in theory, should be fair, unbiased, neutral, impartial and not based or linked to any political party or movement. However, it has been argued in the past that judges are too alike to politicians, as decisions made by the Supreme Court judges have, and will not be mechanical, but in a lot of cases too biased and political. This argument is strongly supported by the outcome of the major Supreme Court case, Roe vs. Wade. This case was a landmark decision which concerned abortion rights for women. Previously, abortion was a very questionable issue and was not allowed in most states. The case had to arguments put forward, one being 'pro life' which did not agree with abortion, and supported by the republicans, and the other being 'pro choice', which was supported by democrats. Which ever decision was made, the result was always going to be accused of being biased towards one political party, and therefore the neutrality and whether judges are non partisan, would be questions. The eventual decision was that the woman should have the choice, meaning the democrats view was supported and placed
Are judges independent or neutral?
Are judges independent or neutral? (30marks) Alex McNichol 12Dii Judges are supposed to be totally independent from the government. They are there to protect the rights of citizens in Britain. The government says that the Lord Chancellor despite the fact they are appointed by the Government are still 100% independent and neutral. This I personally find difficult to agree with as the government pays the bills of the Judges, the government is able to sack judges and the more the judges agree with the government the more the government likes them. A judge liked by the government is more likely to be given a higher position or more power than a judge who is disliked by the government. I am sure that my cynical view on the judicial neutrality is most of the time incorrect, but I cannot help feeling that in some cases judges have benefited greatly from siding with the government in certain cases. The government at the moment is able to overrule any decision made by the judicial system; this concludes that the government really has very little power. Despite the fact the government claims they have nothing to do with the system if it came down to a really important decision they would have the power to alter the outcome. Judges are paid a huge amount to prevent them from being tempted by bribery. With the large pay check that they receive each year they are expected to make
Judges Vs Jury.
JUDGES VS JURY The fact that ordinary members of the public attend in judicial hearings, evaluate evidence, give verdicts etc. became an important distinguishing feature of the English legal system. Although the jury as an English legal institution can claim a very long history, controversies surrounding professional judges and juries are still under debate. The jury in comparison with judges have certain advantages such as objectivity, possibility to represent the same social class as defendants, rare cases of corruption, but judges differ in qualification, experience and responsibility for the cases. The first and most important advantage of the jury is their objectivity. The twelve jurors are completely unknown to the person accused and can give him/her a fair trial. Furthermore, the jurors have no prior knowledge of the case and will be able to reach their verdict entirely on the evidence presented at the trial. Thus, the responsibility for law and order is a community responsibility. It is clear that the person accused leaves his/her freedom in the hands of ordinary people rather than entirely in the hands of the lawyers. So, the jury for their objectivity can be called an instrument of justice. The second advantage of the jury is the fact that most jurors represent the same social class as defendants. In fact, the jury consists of twelve individuals chosen at random
How do judges interpret statutes?
How do judges interpret statutes? To achieve consistency, judges and legal authorities have attempted to establish guiding principles of interpretation. Statute law, unlike case law, provides rules in the form of a single verbal formula. The words of a statute have a unique authority which words in judgments virtually never have. Statutory interpretation means assessing legislative intention based on the binding rules, on principles and on presumptions as to what Parliament had in mind and on linguistic construction. No argument must be overlooked when searching for all the relevant interpretative factors. Judicial interpretation is unregulated by Parliament, however Parliament drafts Acts in such a way as to minimise the amount of interpretation that is necessary. The reason for this is that to have a high degree of judicial interpretation would compromise certainty and result in redrafting of laws by judges. This would in turn result in more complex legislation drafted to avoid judicial rewriting. As a result judges determine the intention of Parliament by "filling in the gaps". It is the judges' role to interpret the law and there are main rules for interpretation, the general principles and they are as follows. The Literal Rule The oldest and most important approach is literal interpretation. The interpretation of Acts purely according to their literal meaning, i.e.
