Judicial Creativity

Specification The extent to which the judges are able to display creativity in the operation of the system of judicial precedent and in statutory interpretation. Consideration of the balance between the roles of Parliament and the judiciary.

Do Judges Make Law? ‘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’. Sir William Blackstone

Ronald Dworkin He sees law as a seamless web of principles, which supply a right answer – and only one – to every possible legal problem, Judges have no real discretion in making common law

The Modern View judicial decisions are actually based on a ‘complex mixture of social, political, institutional, experiential and personal factors’, and are simply legitimised by reference to previous cases. David Kairys

The Judges Agree: There was never a more sterile controversy than upon the question of whether a judge makes law. Of course he does. How can he help it?’ Lord Radcliffe The simple and certain fact is that judges inevitably act as legislators’. Lord Edmund-Davies

HOW DO JUDGES MAKE LAW?

Original Precedent Hunter v Canary Wharf Judges had to decide if the interference of TV reception caused by a large building amounted to nuisance. There was no previous case so a new precedent had to be decided. It was decided not to amount to nuisance Airedale NHS v Bland judges had to decide whether doctors could withdraw feeding to a patient in a persistent vegetative state

Balfour v Balfour CofA had said written agreements between spouses do not create enforceable contracts. the agreement (H to pay W £30 per month) had been made while the couple had being living amicably together and the husband was about to go to Ceylon on government business; they had not split up until two years later.

Merritt v Merritt A husband and wife splitting up after 25 years' marriage agreed in writing that if the wife kept up the mortgage repayments on their joint home, the husband would transfer total ownership to her. W did keep up the payments, but H then refused to transfer. The court in Merritt therefore distinguished Balfour and said the precedent did not apply where the marriage relationship had already broken down; the Merritts' agreement was legally enforceable.

Pepper v Hart the days have long passed when the courts adopted a strict constructionist view of interpretation

SHOULD JUDGES MAKE LAW?

Fitzpatrick v Sterling Homes F applied to take over the tenancy which his partner of 18 years had held, after he died. The landlord had refused to allow this. The law stated that a spouse or someone with whom the tenant had lived as husband or wifeis allowed to take over a tenancy in that situation. CofA had refused F’s application, HofL said this was out of step with modern society and said a same-sex partner could establish the necessary link.

Gillick v West Norfolk AHA HofL had to decide if a girl under 16 needed her parent’s consent before she could be given contraceptives. This was a controversial area – many people said it was an encouragement of under age sex. HofL held that a girl did NOT need parental consent by a majority of 3 to 2.