For the primary law it is created by the legislature, which is the parliament as the parliament has the power to make the statue because the people elected them. This rule can only be used to interpret the statue when it has more than one meaning not when it has a clear or absurd meaning.
In conclusion, judges do not have the mandate of the people to make law.
Usually the court would use the literal rule in the trial first before they would decide to use the golden rule. The claimant, parked his motorbike on a stand in such a way that its wheels were above the pavement but not actually on it.
The first would be the narrow view. In medical situations, if the patient understood and is capable of exercising his own judgment can withhold his consent on artificial feeding which was maintaining his life.
Acts of Parliament are the highest form of authority and the courts hands are tied by it. Despite the name of this Act it is concerned with relatively minor matters such as: So if a bad decision was made by the house of lord then beforewhich could only be changed by the parliament which was far too busy to interfere unless a grave injustice was being caused by the decision.
When the golden rule is being applied, a judge gives the words in a statute their ordinary, literal meaning as far as possible, but only to the extent that this would not produce some injustice, absurdity, anomaly or contradiction.
It goes the other way as well. This certainty enables the vast majority of cases to be settled without the need to go to court. The third approach would be the mischief rule. The third and last advantage of the system of precedent is that it is consistent and certain.
It is also because of judicial decisions that new crimes such as rape within a marriage are considered a crime today. In Fisher v Bell, the courts held that the defendant was not charged under section 1 1 of The Restriction of Offensive Weapons Act as him displaying flick knives was an invitation to treat and not an offer to sell.
Firstly, would be the literal rule. When the literal rule is applied, words in a statue, which are not ambiguous, would be given their ordinary meaning, even if this leads to a unjust or undesirable decision.
Even parliament cannot limit the power of a successive parliament. Most of the rules which govern the formation of contracts come from decided cases. It is vital that the judges update the law according to the society and values today. If not all the judges agree with each other then the majority would have to read out all their judgment and it would not be able to be used as a binding part, which is known as ratio decidendi.
This was seen in R v Miller. A higher ranking court can overrule a ratio created by a lower ranking court but this is highly unlikely because if the higher ranking court were to do so, the case that the lower ranking court had ruled would be deemed as a case that was decided wrongly and this would affect the credibility of the court.
The judges have not been able to agree on which approach should be used and once an interpretation has been laid down, it may then form precedent for future cases under the normal rules of judicial decision.
A higher ranking court can overrule a ratio created by a lower ranking court but this is highly unlikely because if the higher ranking court were to do so, the case that the lower ranking court had ruled would be deemed as a case that was decided wrongly and this would affect the credibility of the court.
The court would then come up with a remedy to cure the mischief of the defendant. In the judicial precedent, it is said that the judges are bound by precedent and stare decisis, in the lower ranking court are suppose to follow the previous judicial decisions made by the higher ranking courts.
The fourth disadvantage is that the higher court are not able to interfere with the ruling of the lower court or the decisions made by the lower court unless the case is being appealed all the way to the particular court then the court would be able to overrule or modify an earlier precedent.
Lawyers can predict the outcome of most cases, as the courts will have previously considered almost any legal problem and a precedent made. So if a bad decision was made by the house of lord then beforewhich could only be changed by the parliament which was far too busy to interfere unless a grave injustice was being caused by the decision.
It means that the judge finds the material facts of the case are completely fresh for him to draw a distinction between the present case and the previous precedent. A statue is an act of parliament. The government department, which consists of business, innovation and skills, propose legislation for approval.
But using the literal rule, the House of Lord interpreted that the act meant that a person who avoided the tax should pay 20 pounds plus treble his whole tax bill of the year.
After it passes through both houses it will be sent to the royal assent where it will become a statue, which the court must enforce. Or they could interpret the act differently. They are known as the literal rule, the golden rule and the mischief rule.
The court is guided by three approaches. Or they could interpret the act differently. He is not bound by the previous case. Usually the court would go start with the first approach, which is the literal rule, and when the defendant defends with an absurd argument the golden rule would be applied.
Do Judges Make Laws? Essay. Parliamentary sovereignty is the key stone in the British Constitution - Do Judges Make Laws?Essay introduction. If judges were to. Apr 05, · Well, judges do not merely interpret the law, they also make laws.
This is because, in the course of interpreting the law, they might be faced with a situation on which the law is silent. They can't merely dismiss the case and wait for the legislature to make laws, they have to come to a conclusion and give the reasons for the decision.
It is now generally accepted that judges ‘do and must make law in the gaps of Parliament’ and welcome development of the common law. ‘The common law is a developing entity as the judges develop it, and so long as we follow the well tried method of moving forward in accordance with principle as fresh facts emerge and changes in society.
Do judges make law or merely play a role in interpreting law? Discuss Judges do both. Judges interpret the statue law and they make the common law.
That judges cannot "make" law; that they merely discover and ap-ply law which has always existed. 2. That judges can and do make new law on subjects not covered by previous decisions; but that judges cannot unmake old law, cannot even change an existing rule of "judge-made" law.
3. That judges can and do make new law; and also can and do un. Aug 18, · Judges make the law by interpreting it.
Laws are rules of conduct but in a country with million plus people, laws can seem unclear as to the application michaelferrisjr.com: Resolved.Do judges make law or merely