Statutory judges creating their own laws. The first rule

Statutory Interpretation
Definition – “”


Up until the
19th century, the courts were considered the primary law makers. In
this same period, there was a reform of the judicial system and the courts lost
much of their law-making power. A result of this was that parliament was now
the main source of English law (UK Parliament, 2017). As laws were no longer
created by the specialists, laws were more likely to be poorly drafted or
obscured. To help the judges deal with this they created the rules of judicial
interpretation. The rules of interpretation are simply a guide to judges, to
help them interpret what parliament intended in their statutes.  (YouTube, 2014). The 4 main rules that are
going to be discussed in this essay are; the literal rule, the golden rule, the
mischief rule and the purposeful approach. After reviewing each rule, we will
then consider whether or not this classifies as judges creating their own laws.

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The first
rule to be discussed is the literal rule. The literal rule simply advises
judges to interpret words at their face value with no alterations to be
considered. In other words, they need to abide by the statute one-hundred
percent. The reasoning for doing this is that parliament made laws with a
specified intention, meaning they do not want any deviation from their
statutes. Any errors or issues that arise within these statutes are left at the
discretion of parliament to rectify. This method can be beneficial as it can lead
to faster, more predictable results and stops unelected judges from making
their own laws ( (n.d.). However, on the contrary, taking a
statute for its face value can result in some very absurd outcomes as seen in Whitley v Chappell 1868. The case where
the defendant was initially charged for impersonation of someone who has
passed, however under the statute you could only be charged for impersonation if
the victim was still alive.  The literal
rule overruled the outcome and the defendant was not charged. From the perspective
of the judges they don’t really have the freedom to alter laws so it agrees
with the initial statement, judges do not have power to make laws.


A rule
that was introduced to combat the absurdity caused by the literal rule was the
golden rule. The golden rule allows the judiciary to slightly depart from the
direct meaning of a statute so that the outcome will be absurd. It can also be
used when the literal meaning gives a statute more than one meaning. An example
of the golden rule can be seen in the case Adler
v George 1964. A case in which the defendant claimed to be innocent because
he was in a prohibited area where as the law stated you have to be in the
vicinity. Judges used the golden rule to demonstrate that ‘in the vicinity’ should
be interpreted as inside an area. The golden rule attempts to give the statute
a somewhat of a ‘second meaning.’ The freedom from the golden rule means that judges
can have more consistencies in the courts as they come to more sensible outcomes.
Using the golden rule in superior courts is also a good opportunity to establish
new case laws. Another advantage of this rule is that there is still respect for
the powers of parliament because there are no physical changes to statute. This
can also act as a drawback because judges are not able to change physical wording
so they are limited to how much they chose to interpret the statute. Regarding
judges, I think that this does classify as judiciary making new law because they
are changing how the law gets applied and subsequently altering the English law



rule applied by courts to amend any ambiguity is the mischief rule. The
mischief rule looks at what a statute was designed to fix. The courts look at
the common law before the statute existed and what problem was present. The
judges then need to decide why parliament created the statute and what problem
did the statute intended to correct. After this, it is down to the judiciary to
recreate the statute in a less obscured manner so that it can be correctly
applied in future cases. An example of when the judiciary had the turn to the mischief
rule was Corkery v Carpenter 1950. The
defendant was under the influence of alcohol whilst riding his bike on the
road. The law stated that no one should be drunk and in control of a carriage
on the highway. The mischief rule upheld the decision because the statute was designed
for the mischief of being drunk and on the highway regardless of driving a car
of bicycle. The mischief rule allows for much more flexibility with judicial
law making because it is down to the judges to decide what they assumed parliament
intended. There is a much larger influence from the judges using this rule.
This results in laws being changed based solely on what a judge thinks. Referring
back to the question, this rule provides the most flexibility and indeed means
that judiciary can in fact make laws.


The last
of the four main rules is the purposive approach. The purposive approach can be
viewed as the modern-day version of the mischief rule. Primarily used by the
European courts, it is a rule that goes beyond the mischief rule. Rather than
viewing what a statue was designed to stop it rather looks at the intentions a
statute hoped to achieve. This can be seen in the case R v Registrar-General 1990. In this case the murdering claimant who
was suffering from mental health issues hoped to access his birth certificate
so he could locate his birth mother (under the adoption act 1976). The courts
decided he would be a treat to his birth mum and declined his request. This
approach enables judges to use a maximum amount of their own knowledge to avoid
any absurd results. This rule can also come in handy with cases that are
related to new technologies that have not been legislated by parliament. Given
the similarity to the mischief rule, the disadvantages are fairly similar too.
Unelected judges are given arguably too much freedom to make their own laws. Resulting
in uncertainty in the law.