Content
1. Introduction ------1
2. The doctrine of judicial precedent ------1
2.1 How Judicial Precedent used ------1
2.2 How the precedent avoided ------2
3. The interpretation of statutory ------3
3.1 How Statutory Interpretation used------3
4. Conclusion ------4
1. Introduction
Historically, the role of judges was that they were merely declaring the existing law. The classical exposition of this view is that, in Willis v Baddeley (1892), Lord Esher stated that ‘there is, in fact, no such thing as judge-made law, for the judges do not make the law’ (Mullender, 2005, p.498). Nevertheless, the view in the modern is changed. The reality is that judges are continually improving the existing law instead of merely declaring the law. The purpose of this paper is to illustrate judges develop the law by applying the doctrine of judicial precedent and different ways of statutory interpretation to insure certainty and consistency are met as well as insuring the law is clearly understood and applied correctly in the English legal system. This essay has been divided into two parts. The first part deals with the doctrine of judicial precedent. It will consider that how judges can develop the law by using and avoiding the precedent. The second part mentions that statutory interpretation and how these four rules of interpretation used. Each point will be supported by an example or a case.
2. The doctrine of judicial precedent
The doctrine of Judicial Precedent is known as ‘stare decisis’, which is Latin meaning ‘to stand by the decided cases’ (Macintyre, 2012, p.15). The doctrine states that lower-ranking courts are bound to follow previously decided relevant cases in higher level courts (Macintyre, 2012, p.702). For example, decisions of ordinary courts are binding upon inferior courts but not upon High Court judges. To better understand the doctrine of precedent, the following two principles are necessary to be explained. The potentially binding part of future precedents is ‘ratio decidendi’, which is the reason for the decision (Adams, 2012, p.43). In addition to binding precedents, ‘obiter dicta’, which means a non-binding part of precedents is merely persuasive in the future cases and does not have to be followed (Adams, 2012, p.44).
2.1 How Judicial Precedent used
Original precedent, a binding precedent, happens when a judge has to decide a case which the fact of this case does not fall within the ratio of any precedent or an ambiguity in the law (Hickman, 2012, p.43). An example of creating an original precedent is in Airedale NHS Trust v Bland (1993), because of a tragedy, the victims, Anthony Bland loss his conscious and had no hope of recovery although his brain was functioning. The hospital with the consent of his parents applied for a declaration which was discontinuing treatment to their son. Because of no existing precedent can be followed, under this new circumstance, judges were required to create an original precedent to binding cases which have the same or similar fact in the future even if other judges do not agree with this decision. From this we can understand that judge being allowed to make law is an effective way to improve imperfect legislation although it may lead to uncertainty.
By contrast, persuasive precedent is not binding but may be helpful to a judge make a decision. Judges who in House of Lords (HL) may be allowed by invoking the 1966 Practice Statement to depart from precedent in the HL in order to make a fair judgment (ibid.). A classic case by invoking the 1966 Practice Statement, R v R (1991), the HL followed a decision of lower court, Court of Appeal (CA), that the defendant can be guilty of raping his wife within marriage. Although the HL was not bound by the CA they still followed the same decision. Clearly, then, the purpose of this decision is to remove misconceptions and express the true meaning of the statute in order to achieve justice. It would enable the lower-ranking courts pay more attention to the decision of higher-ranking courts in humanism. However, if the HL was able to make decision, change would occur when necessary but more in haste. Therefore, the Practice Statement has been rarely used by the HL due to its uncertainty.
2.2 How the precedent avoided
There are two main mechanisms which are rarely used in order to avoid binding precedent in particular cases, which are overruled by a later case and distinguishing.
Overruled by a later case is the first main mechanism of avoid binding precedent. This decision occurs when judge think previous decision is so outdated that no longer to fit in the changing social condition (Adams, 2012, p.43). For example, in Herrington v British Railways Board (1972), the claimant, a six-year-old boy was injured when he accidentally into a private domain through a broken fence with warning. Although in before case, Addie v Dumbreck (1929), an occupier had no common duty of care was owed to trespassers. However, the HL overturned their previous decision which in Addie v Dumbreck and held that the defendant, the occupier, did owe a duty of common humanity to trespassers. The reason for this situation is social and physical condition had changed so the law should change too. Here we can see that overruled by a later case is an effective way of correcting mistakes made by the lower-ranking courts in order to comply with social change.
In comparison with the overruling, which is rarely used, the main mechanism for avoiding binding precedent is that of distinguishing. As has been mentioned, the ratio decidendi of any case is based upon the same or similar material fact of the case. Distinguishing is a tool applied by judges in order to avoid following a previous decision if the facts in the present case are different (Hickman, 2012, p.43). This has been demonstrated in Merritt v Merritt (1971) and Balfour v Balfour (1919), both cases involved two husbands were claimed by their wife. In Balfour v Balfour, the defendant worked oversea and promised to his wife with sending maintenance payments when they in happily married. Due to worsening of relations, the defendant stopped to send money to his wife. The wife sought to enforce the agreement but failed. The reason is that they had no intention to create legal relations existed in an agreement within marriage. This case should be distinguished with Merritt v Merritt, which an agreement after the husband left his wife. That was because if the couple do not have intention to maintain their relations, the court recognized a business agreement exists although they still in marriage. Although, therefore, similar with using of Practice Statement, too much usage will damage the certainty of the legislation. Distinguishing does allow judges to develop the law and create exceptions to a general rule established in a previous case, which means provide more flexibility in the way of improving legislation.
3. The interpretation of statutory
Statutory interpretation is an explanation of clause by judges before applying legislation. The purpose of interpretation is that some Acts may not have been envisaged by Parliament or where there exist errors or ambiguity in the statute (Hickman, 2012, p46).
3.1 How Statutory Interpretation used
The following four main approaches of putting statutory interpretation will be mentioned in this section of the essay.
In general, the literal rule should be the first and simplest way of using statutory interpretation. The book of Law for business students (2012, p.39) states that ‘a literal rule requires the court to take words at their face value’, where there is no ambiguity and the meaning is clear, even if the result appears to be contrary to the intention of Parliament or leads injustice. The use of the literal rule is illustrated by the case of Fish v Bell (1961), according to the Restriction of Offensive Weapons Act 1959, the defendant, a shopkeeper, was charged with ‘offer’ such offensive weapon as a flick knife which displayed in his shop window. His conviction was quashed as goods on display in shops are ‘invitation to treat’ rather than ‘offers’ in the technical sense. The shopkeeper had not made an offer to sell and not guilty of the offence. The court applied the literal rule of statutory interpretation although it contradicted the Restriction of Offensive Weapons Act 1959. Ostensibly, therefore, the literal rule respects parliamentary supremacy and the right of Parliament but it ignores the limitation of language which leads to an unjust judgment.
The second way is golden rule which it is very similar to the literal rule unless it produces an absurdity, and then the golden rule can be used to help modifying the literal interpretation to avoid an absurd result (Macintyre, 2012, p.12). The rule was used in the case of R v Allen (1872) which the defendant was charged with bigamy, based on the literally meaning of the law, even though, he was not guilty. That was because he cannot legally get married if he is already married. In order to avoid this absurd result, the court used the golden rule and held that the word ‘marry’ should be interpreted as ‘to go through a marriage ceremony’. The conviction of defendant was upheld. Therefore, the golden rule has the advantage of avoiding absurdities and revising some ambiguities in the law. However, it has a very limited use, which means words are difficult to be identified in their proper context.
The third rule, mischief rule, gives a judge more discretion than either the literal or the golden rule. The mischief rule allows the courts ‘to adopt a meaning which will enable the statute to fulfil its intended purpose’ (Adams, 2012, p.38). The mischief rule was used in Smith v Hughes (1960) where according to the Street Offences Act 1959, two prostitutes were charged with an offence to solicit ‘in a street or public place’ for the purpose of prostitution. The defendants argued that they were not guilty as they had been soliciting from private premises in windows rather than ‘in the street or in a public place’. Applying the mischief rule, the defendants were guilty. That was because the Act was aimed at ensuring the people who walk in a public place or on a street without soliciting of prostitution. To some extent, it is clearly that the mischief is a flexible rule, which allows judges fill the gap in the law. However, the mischief rule is limited to use due to judges never know when it could be used.
The final rule is the purposive approach which is similar to the mischief rule but has a wider application. For example, in The Royal College of Nursing v DHSS (1981), where according to the Abortion Act 1967, ‘an abortion is legal only if carried out by a registered medical practitioner’. As applying the purposive approach, nurses were allowed to carry out an abortion due to advance in science and technology. With the purposive approach there are many advantages similar to the mischief rule and a main further advantage is to allow new technology to happen. Nevertheless, these two approaches lead to more uncertainty in the law even though they have more creative.
Therefore, each rule may lead to very different decision, it is important to understand each of them and how they may be used.
4. Conclusion
In conclusion, both the doctrine of judicial precedent and statutory interpretation are crucially vital within the English legal system. There are many benefits from applying the law correctly and fairly. Both of them provide flexibility in the English legal system and also they are still rigid enough to encourage consistency and certainty in the law. Therefore, both judicial precedent and statutory interpretation are effective.
References List:
Adams, A., 2012. Law for Business Students. 7th Edition, Published by Pearson
Hickman, S., 2012. The legal system 2012/13, University of Exeter
Macintyre, E., 2012. Business Law. 6th Edition, Published by Pearson
Mullender, R., 2005. Judicial Activism: Authority, Principle and Policy in the Judicial Method by Michael Kirby, Journal of Law and Society, [internet] Available from: http://www.jstor.org/stable/3557244 [Accessed 13 Nov. 2012]
Case table:
Airedale NHS Trust v. Bland (1993)
Addie v Dumbreck (1929)
Balfour v Balfour (1919)
Fish v Bell (1961)
Herrington v British Railways Board (1972)
Merritt v Merritt (1971)
R v Allen (1872)
R v R (1991)
Smith v Hughes (1960)
The Royal College of Nursing v DHSS (1981)
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