This essay will decide whether or not I agree or disagree with the statement put forward by Marianne Giles on whether judge-made law ‘’is objectionable in point of principle as a means of law reform. ‘’ Judges fall within the Judiciary, and their role is to enforce and interpret law rather than create and oppose. Interpretation is defined as the subjective approach towards and objective statement to relate to a current subject matter.
The Purposive Approach is the theory of statutory interpretation which holds that a court should consider the purpose behind a piece of legislation when interpreting its meaning. This approach is important as Judges become law makers, infringing on the Separation of Powers, which was formally put forward when reforming the Judiciary in the Constitutional Reform Act 2005. As well as this, it allows reference to Hansard, which is often a waste of time and money as well as only assuming Parliament has one intention. However, the Purposive Approach brings us closer to the European Union as well as allowing judges to cope with issues unforeseen by Parliament.
Dicey’s definition of parliamentary sovereignty states that ‘’The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’’ The main components that define the UKs’ Parliamentary Sovereignty is the separation of powers. The separation of power falls within three key branches; The executive, which is the Government and the Prime minister, the legislative which is the Parliament who create legislation and the Judiciary who are the judges that interpret and enforce the law. Judges are separated from members of Parliament by how they are not elected which re-enforces the argument that judges should not make law as they are not appointed by the public to govern their laws, which is the foundation of democracy in itself. There is also the argument that because we have an uncodified constitution, it is not clear at all for the Judiciary where the threshold is for what the judges can interpret while still not taking on the role of the legislative in physically creating laws.
Judges do make law in present day, however, they cannot create new legislation as part of the Judiciary, binding precedent is near enough the same as judges making their own laws as they take previous cases and use them to sway their judgement and sentencing so that they can utilise the law while still adapting it to modern day. The Supreme Court can overturn any secondary legislation, under section 4 of the Human Rights Act 1998 , the Supreme Court, like some other courts in the United Kingdom, may make a declaration of incompatibility, indicating that it believes that the legislation subject to the declaration is incompatible with one of the rights in the European Convention on Human Rights.
Statutory interpretation is the process by which courts interpret and apply legislation. The golden rule of statutory interpretation may be applied where an application of the literal rule would lead to an absurdity. The judges choose the most absurd words to change while respecting rules of Parliament by producing results that best reflect the intentions of Parliament. This also leads to the use of referencing Hansard, which makes it easier to find Parliaments intention. In the case of Davis v Johnson, the process was ‘’like groping around in the dark…’’.
However, the Literal Rule can end in absurdities and can be unjust like in the case of ER V Berriman where A railway worker was killed whilst oiling the track. A statute provided compensation payable on death for those ‘relaying or repairing’ the track. Under the literal rule oiling did not come into either of these categories. This result could not be said to be absurd so the golden rule could not be applied. There was no ambiguity in the words therefore the mischief rule could not be applied. The Literal Rule also does not take into consideration Parliament’s intentions in the modern day as shown in this case of ER V Berriman, as there were parties, like the widow, who are affected by decisions made under law that was not made in present day, and were not relevant to the current case.
The Golden Rule is undemocratic while judges use it, as they are able to add or change the meaning of statutes and thereby become law makers infringing the separation of powers. This is because there is no factual examination of the circumstances before a decision is made. A quote from Montesquieu states that “There is as yet no liberty if the power of judging be not separated from legislative power and the executive power”. This quote tells us about how there is no freedom that arises from judges making law when the Judiciary is not separated from the Legislative and Executive as the common man has not voted for those governing his laws.
Marianne Giles put forward the statement on whether judge-made law ‘’is objectionable in point of principle as a means of law reform. ‘’ Although many would argue that judge-made law would be more beneficial for the people as a means of modernisation and relatability, I think that the disadvantages of judge-made law outweigh the advantages. The justice system is based around our sovereignty as a Parliament and by creating a partial separation of powers, the law become more unclear and harder to comprehend by the common citizen. As well as this, there is a strong argument on how democratic judge-made law is, as judges are not elected to create laws, they are appointed to interpret, when necessary, and enforce the laws through previous precedence.
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