Concepts Of Law: Judicial Creativity Flashcards
Precedent: what does precedent require
That judges apply the doctrine of stare decisions and follow the ratio decidendi from higher court and court on the same level
Precedent: when may a judge have to be creative and why
When a new situation arises
Because there is not yet a law which covers it
Precedent: the declaratory theory
Some commentators state that judges in such cases (not yet a law which covers it) are merely finding law that already existed and applying it to new circumstances
Precedent: example of an academic supporting the declaratory theory
Ronald Dworkin
Precedent: theory advanced by Professor Hart and Lord Denning
Judges legitimate role to full in any gaps and make law when required
Precedent: what was the court seen to do in donoghue v Stevenson
Create new law
Precedent: before donoghue and Stevenson, what was unclear
When consumers could claim negligence for injury caused by products they did not buy
Precedent: what did donoghue lay down
Clear criteria for future cases that didn’t exist before
Precedent: what have the principles of donoghue been followed and developed by later judges to cover
Both psychological and pure financial damage
Precedent: psychological damage
MCLOUGHLEB
Precedent: financial damage case
HEDLEY BYRNE
Precedent: what can the Supreme Court overrule itself using
1966 Practice Statement
Precedent: what can the court of appeal overrule itself using
The rules in young v Bristol aeroplane
Precedent: what can all courts overrule the precedents of
Lower courts
Precedent: significant example of overruling
R v R
Precedent: what happened in R v R and what had been the case prior to this
- man charged with raping his wife
- previously held from 1763 that a woman gives her consent to sex when she agrees to marry and cannot withdraw it whilst she remains married
Precedent: what was the last case on marital rape before r v r and what did it state
R v MILLER
upheld reasoning before R v R
Precedent: what did the law lords state in R v R
‘The status of women and the status of a married woman in our law have changed quite dramatically… the common law is capable of evolving in the light of changing social, economic and cultural development
Precedent: what is the problem with overruling
Any changed to the law are retrospective and involve finding people guilty/liable for acts that were not known to be unlawful when they did them
Precedent: example of when all cases decided under previous precedent brought into question (overruling)
When Supreme Court overruled the previous law on ‘joint enterprise’ in case of R v JOGEE
Precedent: what did the case of R V JOGEE raise the prospect of
Numerous appeals from people convicted under the previous interpretation of the law
Precedent: why are laws still overruled despite the disruption
It’s generally thought that the change was long overdue and the need to keep the law relevant to contemporary moral standards outweighed potential disruption
Precedent: what happened in the case of WILSON
The court of appeal did not want to convict a man for complying with his wife’s request to brand his initial into her buttocks
Precedent: what principle did the courts uphold in BROWN AND OTHERS
That consent could not be a defence where hard mmm is caused without good reason and that sadomasochism was not a good reason
Precedent: on what basis did the judges distinguish the cases of Wilson and brown
That in brown the injury was inflicted for sexual gratificatikn whilst in Wilson it was inflicted for the purpose of a personal adornment
Precedent: how was the distinguishing between BROWN and WILSON seen as controversial
The case laid the courts open to accusation of treating homosexuals and heterosexuals differently
Statutory interpretation: why does the literal rule appear to give the least room for creativity
Because the plain, ordinary grammatical meaning must be hard
Statutory interpretation: how is the literal rule not always straightforward
Fisher v Bell: judge applied a technical contract meaning to ‘offers for sale’ whereas most people would accept that a knife displayed on a window with a price on it was being offered for sale
Statutory interpretation: what is the golden rule an extension of and what does this lead to
An extension of the literal rule
Also restricts judges to looking at just the wording of the legislation
Statutory interpretation: how do the mischief and purposive approaches allow more room to develop the law
Judges can use extrinsic aids such as Hansard and law reform reports to research the social and historical background of an act to try and discover its wider purpose
Statutory interpretation: what can the use of extrinsic aids in mischief and purposive approach be used for
To keep the law up to date with technical and social changes
Statutory interpretation: example of when extrinsic aids in mischief and purposive approach were used to keep law up to date
RHN V DHSS
Statutory interpretation: what happened in RCN v DHSS
The House of Lords decided that the phrase ‘registered medical practitioner’ could apply to nurses when it became possible for them to supervise certain types of abortion
Statutory interpretation: second time extrinsic aids used in mischief and purposive approach to keep up to date with technical and social changes
FITZPATRICK V STERLING
Statutory interpretation: FITZPATRICK V STERLING
Prior to statutory equality laws, the House of Lords defines family as including same sex couples, allowing a man to take over his late partners tenancy
Statutory interpretation: examples of areas of the law that are still entirely judge made
Law on murder and involuntary manslaughter
Statutory interpretation: what is the problem with allowing judges to develop the law entirely
It is ad hoc, piecemeal and often haphazard
Statutory interpretation: example of string of cases dealing with the mens rea of murder and the meaning of intention
First: vickers 1957
Ending with: woollin 1998
Statutory interpretation: how could cases like vickers and wool in have been dealt with more efficiently
By legislation enacted by parliament following proposals from the Law commission
Statutory interpretation: what are judges concentrating on when they make law
The outcome of the case in front of them, based on the arguments of two sets of lawyers
Statutory interpretation: what is legislation on technical legal usually the result of
Meticulous research over a period of time, taking into account any relevant wider context
Statutory interpretation: why is it argued that judicial development of the law is quicker
Any changes come into effect instantly
Statutory interpretation: what does the fact that changes made by judicial law being instant not take into account
The length of time it may take for a suitable case to get to the appeal courts
Statutory interpretation: when was the law on tape in marriage changed by the court of appeal
Not until 1991, and not made statutory until 1994
Statutory interpretation: how is judicial law making undemocratic
Judges are not elected and are unaccountable to anyone apart from other judges decisions
Statutory interpretation: what is the opposing argument for judges being unelected
They are able to uphold the rule of law independently without undue concern for public opinion/disapproval from the media
Statutory interpretation: why are judges able to uphold the rule of law independently without undue concern for public opinion/media
They don’t have to worry about being re-elected, like politicians
Statutory interpretation: why is judicial law making inevitable
Because sometimes there is no previous precedent/legislation on the issue at hand, and the case before them must be resolved
Statutory interpretation: if the outcome of judicial law making causes enough disapproval what happens
Parliament can legislate to change it as it remains sovereign
