This essay shall argue the extent to which judges can correctly use their powers to shape the law. Judges are public officers appointed to decide cases in a law court .
Throughout this essay I will be discussing the concept of Precedent (stare decisis) and if it can be used by British judges to shape the law. Furthermore, this essay should also consist the limitations literal interpretation brings towards judicial power to shape law by limiting judges to Parliament’s words.Judicial precedent is a timesaving concept which consists of a judge following the decisions of an earlier case. Judges do not have to keep solving every single case that comes before them.
Judicial precedent saves repetition as well as stops judges from making conflicting decisions. If there are multiple judges dealing with the same case this could lead to judges sharing different opinions which will lead to judges not using their power correctly to shape the law. Once a novel case has been declared and the decision has been recorded then it will only be just and fair if similar cases are decided in the same way. An example of this is the case of Donoghue v Stevenson where Mrs Donoghue went to a cafe with a friend. Mrs Donoghue’s friend brought her a drink which, after drinking realised contained a decomposed snail. Mrs Donoghue suffered from personal injury and commenced a claim against the manufactures which was successful. This case established the neighbourhood test. This set a binding precedent which was followed in Grant v Australian Knitting Mills where a man purchased clothing and suffered dermatitis and was admitted to hospital due to the fact that the clothing had been sold with an excess of chemicals inside them.
The chemicals had not been sufficiently removed during the manufacturing process. The man sued the manufacturer on the basis that they were negligent in failing to take reasonable care in the preparation of the garments. Precedent applies certainty to the law, which will lead to people knowing what the law is and how it will be applied in their particular case.
The House of Lords in the United Kingdom were bound to follow all of its previous decisions under the principle of Judicial precedent affecting the ability for judges to shape law due to the hierarchy of the court. However, the practice statement of 1966 applies flexibility to judicial precedents, giving the house of lords as well as judges more power to shape the law.Furthermore, the language used in the statute can cause problems. Over a number of years, 3 rules have been developed on how words from statute can be interrelated.
These are the literal rule, the Golden rule and the mischief rule. The literal rule is where words are given their plain ordinary meaning . Lord Esher says “if the words of an Act are clear then you must follow them even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity” .
In other words, It is up to the supreme legislative body in the UK to make laws and not for judges (who are not elected) to interfere with this. Judges are simply there to enforce the laws/will of parliament. An example to this is Whitley v Chappell (1868) where the defendant was charged under a statute where it was an offence to impersonate any person who is entitled to vote. This defendant had acted to be a person who was entitled to vote but was dead.
All the charges towards defendant were dropped due to the fact that a dead person is not literally entitled to vote. The literal rule makes the Law certain and easier to understand, however, Due to the fact that Judges are only entitled to uphold the supreme legislative body’s Law. This means Judges can only use their power to advocate the law even if the decision is unfair or unjust. As a result of the unfair and unjust situation arising from the literal rules.
The court introduced a new rule of interpretation that will result in justly case results. In the case of Alder v George (1964) , the defendant obstructed HM forces in a prohibited area whilst the Official Secrets Act of 1920 states it’s an offence to obstruct her majesties forces in the vicinity of a prohibited place. By applying the narrow application and the second meaning of the wording to avoid an absurd result. The defendant was found guilty, stating that the Act should be read as ‘in or in the vicinity of’ the prohibited place. The Golden rule gives the judge power to choose the most sensible words and therefore shape the Law, however, judges using their power to shape the law could lead to inconsistency and uncertainty through the courts. Addition to this, the mischief rule places less emphasis on the words compared to the golden rule gives. The judges are given more discretion to be able to find a decision they feel is the right one.
Smith v Hughes is a case where 6 women were charged under the Street Offence Act of 1959 as it was written to be an offence for a common prostitute to loiter in a street or public place, nonetheless, these women were loitering from there balcony in their homes. Under the literal rule, the 6 women would be found not guilty. However, Applying the 4 questions from the mischief rule and the remedy proposed by parliament was for the prostitutes to not interfere with law-abiding citizen the judge ruled all 6 defendants as guilty under this rule. In conclusion, Judges can correctly use their powers to shape the law, however, are limited by the supreme legislative body in the UK. Judges can try to interpret the law parliament try to intend to enforce.
Nonetheless, it’s not solely based on their own beliefs and views. judges are still tied down to view sources and use their power justly.