To simplify the usefulness of Montesuieur's theory is that, it seeks to demonstrate the clear demarcation between the functions i. e. legislators equals creator and Judiciary equals adjudicators. For the purpose of this essay it is the subtle interrelationship of the legislative and judicial organ that seeks to ascertain whether judges merely act as adjudicators as oppose to creators of the law. In essence, the dominant form of law making is legislation in the form of Statutes.
If legislation is considered superior to everything else (excluding EC Law) then surely the premise holds true that law has already been created, whereby the mere appliance of statutory instruments is carried out by the judiciary. Playing with the statutory instruments involves three rules. It begins with the "literal rule" whereby judges interpret statutes by giving words their plain meaning which can be said to highlight the clear direction of judges to assume the adjudicator role and as recognized by Lord Brougham1 in 1840.
Lord Esher compliments this ethos in R v Judge of the City of London Court (1892) " … if the words of an Act are clear … The Court has nothing to do with question whether the Legislator has committed an absurdity. " And reaffirmed by Lord Bramwell in Hill v East and West India Dock Co (1884) " … leave the legislature to set it right than to alter those words… " However, plain meaning may be useless in controversial cases because there are no single plain meaning. A more discrete adjudicator role of the judges can be applied in the "golden rule.
" Judges apply the plain meaning of, unless that produces an absurdity, as highlighted in R v Allen (1872) Taking this element one step further, the mischief rule states that judges should look to the purpose behind the Act as highlighted in Black-Clawson International Ltd v Papierwerke Waldhof-Ashaffenburg AG (1975). With the literal and golden rule there is room for judges to toy, thus altering the meaning of the Act, surely this is in fact creating new law. However, when legislators (Parliament) has not spoken at all on a legal area, the common law of judicial decisions is all the judge has in the way of pre-existing legal principles.
This takes the form of the ratio decidendi (the legal principle or reasoning which forms the precedent for the future). Also considers the obiter dictum (persuasive precedent), to guide the current decision of a case. Thus, in essence Stare decisis et non quieta movere is upheld. Every court is bound to follow any decision made by a court above it in the hierarchy and in general, appellate courts are in general bound by their own past decisions. Merely adopting the pure essence of the precedent is by no means a form of creating the law.
Rather the process is used for subsequent cases. Judges are not distinguishing scenes of crime from one case to another but the use of principles is extracted so for example in contract law the case of Carlill v Carbolic Smoke Ball Ltd (1893) 1 QB 256 (COA) it was held that an offer is made to the world at large. Cases thereafter, for example, will use this precedent in their decisions. In a clear example: – tort law. Most of the law has been developed from legal principles only. For example, negligence has been a result of judicial decisions not embodied in statute.
Donoghue v Stevenson (1932) AC 562 HL is a fine illustration where the neighbouring principle was established which holds precedent for future cases. Contrast with McLouglin v O' Brian (1982) ALL ER 298 (HL) the decisions of the House of Lords extended the tort liability for nervous shock to close relatives of those injured in an accident who saw the victims shortly afterwards. So, if Parliament is supposed to be Sovereign and the judges are merely stepping into Parliament's shoes where Parliament has not provided a definite solution.
Parliament of course can (and will! ) overturn a judge's solution. But, since Parliament will consider policies then why not allow the judges to anticipate that process and save legislative time? Given the scope of creativity for judges, there are intrinsic boundaries where judges know when to stop the fusion of legislator and adjudicator particularly in the area of overruling. The judge will firmly know his/ her place when seated in the comfortable arena of staris decisis -the tradition of certainty and consistency is treasured highly.
In R v Clegg (1995)1 ALL ER 334 (HL) the House of Lords considered the issue of whether manslaughter should be available as an alternative to murder whereby a soldier used excessive force in self-defense and whether the mandatory life sentence of murder should have been retained. It was decided that this was policy for the legislators and not the judiciary thus, the fine line between judges knowing when to act even when Parliament has failed to initiate is clearly in place.
Similarly, in the criminal case of C v DPP (1995) the boldness of the Queen's Bench Division in its courageous steps to remove "doli incompax. " Was later reversed by the House of Lords. Particularly in criminal law, the element of public confidence may precipitate the role of the judiciary into a more definite role of legislators. A prominent case in criminal law is R v R (1991) 3 WLR 767 (HL) whereby the Law Lords overruled the principle that there was no offence of "marital rape. " The old principle was considered outdated in that a wife gave consent to sexual intercourse once married.
It can be argued that legislators will only know when to act (pun unintentional! ) when the judiciary finds an offence not already covered. Here, the distinction lies in which, law is created by the judges in order for the legislators to pass. Clearly shown in Shaw v D. P. P (1961) 2 ALL ER 446 (HL). Again, public pressure applies in whereby a new offence was brought up in order to preserve the public's interests. Three years later a statute was passed encompassing the new precedent in The Obscene Publications Act (1964).