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Essay: ‘Judges do every day make law, though it is almost heresy to say so.’ Discuss.

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  • Subject area(s): Law essays
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  • Published: 22 February 2022*
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  • Words: 1,057 (approx)
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  • Tags: Statutory interpretation essays

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By getting a chance to discuss with reference to the rules of statutory interpretation, I will indicate whether I agree or disagree with the statement and if there is a need of statutory interpretation.

Laws in United Kingdom are suggested by us, and it gets passed to the House of Parliament where it turns out to be something called bills, which gets introduced at the Parliament by the government. To turn bill into a law Parliament has to pass it over to the House of Lords, and when the bill is improved by both of the House MPs it becomes a law that we have to follow in the country. In the other words, Parliament is the supreme law making body in England and Wales.

There is a need of a statutory interpretation, because judges only can apply laws, but cannot make new laws while they are dealing with certain cases. If Parliament makes law and has certain wording or meaning of use it the law, and if judge do not explain properly, it might leave the verdict unclear. When judges are dealing with the cases, they have to be able to understand the law and be able to use with certain measurements, so the actual law does not lose the meaning which have been made by parliament. However, there are different methods of the statutory interpretation and judges have to be able to see the difference and apply laws differently to each, method.

There are four rules and every rule has their own way of work in the courts for judges.

Literal rule is one of the most important, because judges cannot change not even a single word in the law, which means they have to take it as it has been represented by the Parliament, literal meaning of the words. Courts have to pay a very close attention to the law and the actual words and their actual meaning with no doubt. If literal rules interpretation leads case to the absurd, the Golden rule is used then, but in this case only. Court might apply secondary meaning to the law if literal rule is not working out and not helping the case.

The Mischief rule, is the oldest of the rules, and has been established in Heydon’s Case 1584. Since Mischief rule is the oldest rule, it has the longest practise in the statutory interpretation and this method is most needed in Courts. Mischief rule only should be used when there is a doubt in the statute and Courts do get disorganised during the certain cases. When Courts are using Mischief rule for cases, they have to conduct three-part test:

1. What was the law before the making of the act?

2. What mischief or defect was there in that law?

3. What remedy was Parliament attempting to give?

Courts have to follow these rules to make sure that rule suits the right case and that there is an outcome for it, without twisting words or making any absurd judgements.

The purposive approach is becoming one of the most popular and mostly used rule in courts. This method is more of a freelance method if compared to Mischief, because judges do not have to look back into the history of the method, it allows the judges to think about the purpose of the statute, what is the need, look into the business and administrative considerations which are written in the legislation. Even this method is more of a freelance it still does not mean that judges have the right to re-write or reword or ignore the actual law that has been made by Parliament and is written in the statute.

All these methods do help Judges at Courts to make better decisions, but there is no such a thing as perfect legislation. All the laws that have been agreed on and came out in use for us, have been reworded or changed in the sentences.

The are 2 different types of aids to the Statutory Interpretation, there are internal and external aids/Interpretation. Internal Aids usually contains all written work, which is official and usually is in the printed version of the statute. The external aids are less official but they are more used in studies, external aids usually are: Hansards, history of the law and other related laws.

My own personal opinion about whether judges do make their own laws or their own outcomes of the law is that I do believe , judges do make their own rules , because they use laws , legislations and rules that have already been brought for us by Parliament and are in use , but certain laws are classified under literal rule , which means they cannot be altered or reworded , but judges significantly move from Literal Rule and use Golden Rule , which means they do not have support any evidence or any explanation on why they have agreed with it . Judges do not make their own laws officially, but depending on the seriousness and importance of the case, they have to use the right Statutory interpretations and the right methods to make sure that the case is critically and extremely observed for the best outcome and Judicial decision is in the right place.

The importance of knowing our laws is very needed, and Judicial decisions are very important. Courts do try to make their own laws, in fact there is no such thing as making their own laws, but they use things like ellipsis, which sometimes makes Judges to use different methods to apply for the laws, same as using ambiguity, which usually a typical reason for making Literal Rule an absurd. Sometimes there are some laws and legislations, that have been in our Law system for a long time and , but new developments happen , some laws get updated , which means that ‘old’ legislations cannot cover the modern situations and sometimes there is not enough of knowledge of statute or law , which leaves Courts and Judges to use other familiar laws to come up with the Judicial decision. The reason why Judges and all the Courts do have to apply certain laws and ellipse the law , because we do not have enough of laws to cover every case and every crime, therefore Judges use their statutory interpretation to make decision as realistic and similar as possible to the actual law/statute.


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