Judicial Discretion and Interpretation
The term judicial discretion means that judges have the power to make more independent decisions in certain legal cases using their discretion. In the legal system of England and Wales, Parliament is sovereign therefore it has the ability to legislate and it is the role of the courts to enforce the statutes. As it is a common law system, courts are also bound by precedent. It is the duty of the judiciary to interpret the statutes and apply precedents. According to British legal philosopher HLA Hart, however, there are certain cases which are ‘legally unregulated’, meaning that the law is ‘partly indeterminate or incomplete’ as it is impossible for the legislature to create legislation for every possible
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The first is the literal approach which aims to make judges follow the words of the statute if those are not ambiguous and precise and it goes even further in R v City of London Court Judge and Payne , stating the words should be followed ‘even though they lead to a manifest absurdity’. The Golden Rule, an adaptation of the literal rule, is used to correct these absurdities by taking ‘the whole statute together’ , analysing it and if the literal meaning of one word creates absurdity for the whole statute, then interpreting it in a different way. The Mischief Rule is oldest method of interpretation, also known as the Rule in Heydon’s Case . The objective of this approach is to find the intention of Parliament when enacting a statute and interpret it in a way that is in accordance with that intention. The last one is called the purposive approach which gives judges the most independence. Its main aim is ‘to interpret the enactment in such a way that the objectives of the statute are realized’ . In Bulmer v Bollinger (No2) Lord Denning declared that instead of just analysing the words of a statute, the judge must find the intent of the Parliament so in case he finds a gap, he can fill it in a fashion that it corresponds with the objective of the statute
Judicial Activism- judges should interpret and apply the law in the light of ongoing changes in conditions and values
The role of the judiciary is to interpret and apply the law, not to make it. In some cases an approach that gives slightly more emphasis to the text may be seen to be more in line with the judiciary’s constitutional position. The law is written in the words of the statutes, and Parliament has an obligation to express law correctly. The role of the court courts is not to ensure that Parliament hits the target every time, especially when the legislation does not clearly display those targets.
The late 1700s and early 1800s were a time full of expansion and innovation in the United States of America. The country was getting bigger, both in population and in geographic size, and the government was getting more powerful as well. This was because of the new Constitution that was put into place in 1787 that replaced the Articles of Confederation and took most of the power away from the individual states and gave it to the federal government. When the Constitution was ratified, both Brutus (believed to be Robert Yates), and Alexander Hamilton were in a debate over the potential power of the federal government, and more specifically, the power of the Supreme Court in Federalist 78 and Brutus’ eleventh and twelfth letters. Alexander Hamilton supported the proposed system and expressed his belief that the judiciary did not have too much power by any means. Brutus was more concerned that the court would simply side with the government and would therefore have too much power over the states. In 1803 one of the biggest landmark cases ever reached the Court, Marbury v. Madison. This case was not directly about the power of the court, but similar to most Supreme Court cases, it turned into a debate about something more crucial. By reading John Marshall’s opinion on the Marbury v. Madison case, it is apparent that Brutus originally had the better idea about the Supreme Court’s power due to his overwhelming wisdom and excellent foresight into what the judiciary would eventually become.
The English legal system is complex and there are many ways in which it can be influenced, this essay will explore some of the different, more obvious ways the law can be changed and what this shows in relation to the quote above. First the essay will discuss the different ways the law can be created and changed and who enables and controls those changes, with my primary examples being the common law and legislation for the judicracy and Parliament respectively, then the essay will cover to what extent these powers enable the judicracy to change and create law in relation to Parliament and if it could be discribed as "opportunistic and piecemeal".
The first approach is assessing the Law according to its target audience. This is beneficial as it defines the context in which the text is applying itself to. Hays mentions, “Connecting texts to their contexts is a basic tenet of proper interpretive method. The Law is part of a story, and this story thus provides a critical context for interpreting the Law.” This approach can be problematic as meaning of a particular law could be misinterpreted to fit the context in which it is placed in. The Law may be given in a specific instance; however, it could have a general meaning, which could be lost using this approach.
Parliamentary sovereignty, a core principle of the UK's constitution, essentially states that the Parliament is the ultimate legal authority, which possesses the power to create, modify or end any law. The judiciary cannot question its legislative competence, and a Parliament is not bound by former legislative provisions of earlier Parliaments. The ‘rule of law’ on the other hand, is a constitutional doctrine which primarily governs the operation of the legal system and the manner in which the powers of the state are exercised. However, since the Parliament is capable of making any law whatsoever, the concept of the rule of law poses a contradiction to the principle of parliamentary supremacy, entailing that Parliament is not bound by the Rule of Law, and it can exercise power arbitrarily.
Suppose a special prosecutor tired you on purpose to put you in jail, and you didn’t plead guilty to show that you are truly innocent. Is it fair to you when the prosecutor tried knowingly and willfully while you are innocent? What do you do if you are harshly punished because you do not want to plead guilty to show that you’re innocent for real? This thing has been happening in our court system in criminal cases for many decades. In criminal cases, punishing defendants who didn’t plead guilty harshly creates severe problems to its citizens. To avoid those problems, judges and juries should not lessen the punishments, whether defendants plead guilty, or they should not harden the punishment for people who did not plead
The judges, judiciary power, ought to interpret the law by providing the justice and peace to the country. An ambiguity existed in this part, because as we already know, the RP is unchecked and absolute. Sir Edward Coke, believe that the King hath no prerogative, but that which the law of the land allows him. Lord Delvin has different perspective, and said that the court will not review the proper exercise of discretionary power but they will intervene to correct excess or abuse. With the Devlin’s view we can clearly understand that the RP can help the executive power to protect the separation of powers. Lord Scarman assumed that the exercise of the power is subject to review with principles of the review of exercise of statutory power. It is worthwhile to consider that Lord Roskill successfully support a view which said that the orthodox view was at that time that the remedy for abuse of the prerogative lay in the political and not in the judicial field. While the RP is still exist, and also sets the directions of our lives, has to be reviewed. The key power of our unwritten constitution is to protect separation of powers, as the other powers acts with check and balances, the prerogative power should be
Mens rea refers to the mental element involved in committing a crime and is concerned with the guilty mind of the defendant. Both intent and recklessness are categories of mens rea that are different and have different levels of culpability.
The debate over the legitimacy of the role of judicial review in the United States constitutional democracy has been around since the creation of the Constitution. The power of judicial review can be considered antidemocratic because it isn’t directly stated in the Constitution, of the authority of unelected judges and the fact that it sometimes resists the majority. Despite these claims, I believe judicial review is a constitutional doctrine, which arose from the historical process of persuasive reasoning in rulings, institutional prestige, the cooperation of political branches, and general public opinion.
Introduction This submission will discuss the problems created by the Doctrine of Judicial Precedent and will attempt to find solutions to them. Whereas, English Law has formed over some 900 years it was not until the middle of the 19th Century that the modern Doctrine was ‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). Law is open to interpretation, all decisions made since the birth of the English Legal System, have had some form of impact whether it is beneficial or not The term ‘Judicial Precedent’ has at least two meanings, one of which is the process where Judges will follow the decisions of previously decided cases, the other is what is known as an ‘Original Precedent’ that is a case that creates and applies a new rule. Precedents are to be found in Law Reports and are divided up into ‘Binding’ and ‘Persuasive’.
Judicial precedent, which is case law, has been and still is a major issue. source of law in the English system. The decisions from previous cases. create a law for future judges to follow. The English law system is based on the Latin principle of stare decisis, which means'stand by'. what has been decided and do not unsettle the established, i.e. follow the common law, don't try to change it.
INTRODUCTION: Parliament, the supreme law-making body, has unrestricted legislative power, and the laws it passes cannot be set aside by the courts. The role of judges, in relation to laws enacted by Parliament, is to interpret and apply them, rather than to pass judgment on whether they are good or bad laws. However, evidence has shown that they have a tendency to deviate from their ‘real roles’ and instead formulate laws on their own terms. Thus, the real role of a judge in any legal system continues to be a phenomenon questioned by many.
The rule of law, simply put, is a principle that no one is above the law. This means that there should be no leniency for a person because of peerage, sex, religion or financial standing. England and Wales do not have a written constitution therefore the Rule of Law, which along with the parliamentary Sovereignty was regarded by legal analyst A.C Dicey, as the pillars of the UK Constitution. The Rule of Law was said to be adopted as the “unwritten constitution of Great Britain”.
Judicial review seeks to enforce and uphold constitutional doctrines which govern the UK’s uncodified constitution by scrutinising administrative action. One constitutional function of judicial review is to enforce the rule of law. It can be argued, in defining the rule of law as “negative value...designed to minimised the harm to freedom and dignity which the law may cause in its pursuit of its goals” Joseph Raz characterised judicial review. The principle of which states the executive is to be ruled by the law and subject to it.