' The role of the judge is to declare what the law is, and not make it'. Discuss this statement with reference to the theory and practice of both statutory interpretation and the doctrine of precedent. The judge's role is to interpret and declare the law from Acts of Parliament.
The eighteenth – century legal commentator William Blackstone stated that judges do not make law, they merely follow the rules of precedent, discover and then declare the law which had always been there: ' the judge being sworn to determine, not according to his private sentiments…not according to his own private judgement, but according to the known laws and customs of the land: not delegated to pronounce a new law, but to maintain and expound the old one'. In other words, this means that judges should theoretically make their decisions based on the logical deductions of precedent and that their decisions must be uninfluenced by political considerations. These decisions are called case law and is also known as common law.
These decisions are made by the judges who hear and try cases, they also listen to the evidence and the legal argument , from here they prepare a written decision stating which party is going to win based on the facts of the case and how the law applies to those facts. However, when a judge decides a case, he/she must follow any decision that has been made by a higher court in a case with similar facts. The rules concerning which courts are bound by which are known as the rules of precedent. Judicial precedence is a source of law created by judges and it is also an important part of case law.
It is one of the oldest sources of law, and there are at least 400,000 reported cases. Judicial precedence is basically when a previous decision made by the courts is used as a model or precedent for all future decisions for cases that have similar circumstances. These decisions are to be followed by other judges depending on their position in the court hierarchy and the facts of the case. This is also known as the doctrine of stare decisis which means that judges are to stand by what has been decided, so this means that a decision made in one case is binding on all following cases of similar facts in the lower courts.
When deciding cases judges can create legal rules, and these are made in a particular way. These legal rules are found in the judgement that is delivered to the court. The judgement(s) give a decision on the case and this decision is binding on the parties, this is known as res judicata. The judgement also contains the ratio decidendi which is the legal reasoning for a judge's decision. For example, the ratio decidendi of the Donogue v Stevenson case ( 1932 ) case was that a manufacturer owes a duty of care to the ultimate consumer when putting up their product.
However, judges will not only state the ratio decidendi in their final judgement, they may also speculate what the outcome of the case would have been if the facts were slightly different. These comments are called obiter dicta (comments made 'by the way'). A binding precedent made by a court is a precedent that must be followed by other inferior courts. A persuasive precedent is one that is not binding on any courts but the judges might want to follow it, it is their choice whether or not they want to follow the precedent.
Generally, inferior courts must abide by precedents made by superior higher courts. Some courts are also bound by their own previous decisions as well as decisions made by higher courts. There are hundreds of cases and different precedents being produced each day so the law keeps changing, judgements need to be recorded accurately to avoid confusion and it has to be possible for judges to be able to establish the ratio decidendi from cases. If this is not possible the precedent is said to be made per incuriam, and is no longer used.
There also needs to be a clear hierarchy of courts where superior and inferior courts are established. The UK system of judicial precedent provides this as there is a very clear and distinguished court hierarchy established by the Judicature Acts 1873 – 75. Also, judgements are recorded accurately and reliably as barristers report judgements made by the superior courts and are published in newspapers ( e. g. The Times ), journals and volumes of collected reports ( e. g. The All England Law Reports ).
The House of Lords is the highest in the court hierarchy therefore because it is the most superior court, its decisions and the precedents made by the House of Lords will bind all lower courts which are all inferior to the House of Lords. Cases of significant importance however , will sometimes be referred to the European Court of Justice. Decisions made by the House of Lords are binding on all English courts but the Lords are not bound by their own decisions. In the past, before 1966, the House of Lords were bound by their own decisions, this was done to ensure certainty in the law.
This meant that the only way a previous precedent made by the Lords could be changed was through an Act of Parliament. However this changed in 1966 when the Lord Chancellor issued what is called a Practise Statement. The Practise Statement is a set of directions from a senior legal figure telling the courts about policies and procedures that they must follow. It now states that the House of Lords would no longer be bound by its previous decisions. It also gives it more power to depart from its own decisions when required in certain circumstances.
It can only do this if the previous decision is out of date and/or the previous decision was wrong or created uncertainty. An example of the House of Lords departing from a previous decision, due to the fact that it was out of date, is in the case of British Railways Boards v Herrington ( 1972 ). In this case an electrified railway line ran through property that was open to the public. It was fenced off but the fences were in a state of disrepair and it was known that people took advantage of this and used it as a shortcut across the tracks and that children also used to play on the line, however nothing was done about it.
As a result of this, a six year old child was severely injured as he was electrocuted when he stepped on the tracks. He gained access to the tracks through the broken fence. The House of Lords held that the occupiers owed the trespassers a duty of care to observe 'common humanity' under the tort of negligence, they had a duty of care in keeping railway fences repaired. The Lords did not follow a previous decision made in the case of Robert Addie & Sons (Collieries) Ltd. v Dumbreck ( 1929 ) which was quite similar.
It was about a four year old trespasser who was crushed in the wheel of a haulage system that was operated by the colliery. In this case the decision was that the occupiers owed no general duty of care to the trespassers. They would only owe a duty of care if the occupier purposefully caused harm to the trespasser and this was not the case. In summary, both cases were about the liability of occupiers of land for injuries suffered by child trespassers. The Addie case showed the popular view at that time that this sort of liability was limited.
In the British Railways Board case, public perceptions had changed over time and the negligence laws had also developed. This meant that liability could be extended. Another example of the Lords departing from a previous decision which was wrong or created uncertainty was in the case of R v Shivpuri ( 1987 ) where it stated that an earlier interpretation of the Criminal Attempts Act 1981 in the case of Anderton v Ryan was wrong. The next court down in hierarchy is the Court of Appeal.
The Court of Appeal Civil Division is bound by the previous judgments of the House of Lords. It is also bound by its own previous decisions and decisions made by the Court of Appeal are binding on the High courts and County courts. Lord Denning ( Master of the Rolls ) opposed this and argued his view that the court should not be bound by its own previous decisions or the previous decisions made in the House of Lords. He felt that if they found a previous decision to be wrong, they should have the freedom to depart from it.
He displayed this in the case of Cassell & Co v Broome (1972) where he said that a previous Lords decision was made per incuriam and so as a result, the courts were reprimanded by the Lords. Another example of this was in the case of Davis v Johnson (1979), where the court tried to overrule its own previous decision; as a result the Lords condemned the court. In the case of Young v Bristol Aeroplane Co (1944) it was recognised that the Civil Court of Appeal was required to follow its own previous decisions and it also established three different circumstances which would prevent the Court from having to follow its previous decision.