Essay Example on Whether judges can correctly use their powers to shape Laws









This essay will discuss whether judges can correctly use their powers to shape laws in order to fully assess this factor the role of a judge statutory interpretations and judicial precedent must be defined and evaluated The term correctly itself can also be interpreted in many ways morally correct or in the eyes of the law Although there is no legislative or express democratic authority for the courts to be lawmakers but judges make the law by applying and developing common law and interpreting acts of parliament A judge is defined as one invested with authority to determine any cause or question in a court of judicature their judicial powers within the state are favourable when it comes to shaping the law because of their hierarchical power Their role within the legal system is vital Lord Mustill defined them as they are persons to interpret the laws and see that they are obeyed The further basic functions of the role of a judge are to resolve legal disputes apply the law in particular cases provide definitive interpretations of legislation and the common law and to provide legal remedies 

The way judges interpret Acts of Parliament is one way they make and shape the law The concept of statutory interpretation has become increasingly important because the era of judge made law is probably coming to an end This does not mean that judges now have less power they just have a different role to fulfil by interpreting statutes rather than creating them There are three different rules set out in which a statute will be interpreted by the literal rule the golden rule and the mischief rule The literal rule is self explanatory it follows the traditional view of courts because the law is applied following its literal meaning and the judges don't alter or make the law Judges could incorrectly use their powers to shape law if they misinterpret statutes using the literal rule if there are grammatical errors present It has been suggested that where there are conflicting grammatical meanings the court must decide between them by looking at the possibilities and the section as a whole However it must also be considered that the purpose of statutory interpretations is to adopt a legal meaning and not necessarily a grammatical one The most probable critique of the literal rule is that it can be portrayed as too harsh The case of Diane Blood is evident of this she was denied right to conceive by artificial insemination after her husband's sperm was harvested while he was in a coma 

The Human Fertilisation and Embryology Act 1990 required the donor s consent because he was in a coma and didn t consent she was refused access because the judges addressed they were forced to rule that the literal language employed by the statute was obvious and they couldn't refute it Arguably the literal rule does not allow much leniency and judges have limited power applying it but by following a statute literally they are theoretically correctly applying the law the way it was supposed to be The golden rule is a development of the literal rule it specifies that sometimes taking the literal meaning might oppose the outcome of what parliament initially wanted The golden rule is normally used in circumstances where there are a number of literal interpretations so the judge must decide using the statute and possible literal interpretations what is correct An example of the golden rule can be seen through the Offences Against a Person Act 1861 whosoever being married shall marry another person during the life of their previous husband or wife If following the literal rule the statute itself does not make sense because it was illegal to have a second marriage under such circumstances anyway so the second marriage was not a lawful marriage The golden rule was used to interpret the marriage as when somebody purports to marry someone else 

The golden rule demonstrates that judges can correctly shape law using their powers because the outcome of a case will be based on the judges personal interpretation unlike the literal rule judges have more power too because they aren t constricted by literal interpretations The third rule is the mischief rule this rule varies from the literal and golden as it is seen as the most historic It is used when the previously applying statute does not apply anymore judges act to some extent create or apprehend new legislation The case of R vs Stamford 1972 2 QB 391 where the appellant had been convicted of sending indecent or obscene postal packages had to be charged but under the Post Office Act 1953 there was no definition of obscene or indecent It was decided that by using other legislation Obscene Publications Act 1959 they could act to charge someone and alter legislation Judges therefore under the mischief rule have the most leniency and their powers still shape law when applied correctly To conclude although in comparison from historical times where judges had an overruling say it is not an unjustifiable statement to believe that judges still don't have the ability to create law even if it is not there current role Judges have enough power as demonstrated through the statutory interpretations and judicial precedent that they can correctly shape law Whether this be legally correct or morally

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