Develop the Law Through the Operation of Doctrine of Judicial Precedent and Application to the Rules of Statutory Interpretation

Only available on StudyMode
  • Download(s) : 139
  • Published : March 4, 2013
Open Document
Text Preview
Introduction

Statutes and case law are two significant sources of the UK law. In the convention of common law, the law applied to a case is decided through judicial precedent and statutory interpretation. There can be effectiveness of judicial precedent and statutory interpretation in separation as well as when they are combined in the development of law. To what extend can a judge develop the law through the operation of doctrine of judicial precedent and application to the rules of statutory interpretation will be discussed in this assignment. In the first place, this assignment will give an introduction to judicial precedent and statutory interpretation. In the second place, how can judicial precedent and statutory interpretation develop the law will be analysed and evaluated. Eventually, the conclusion of this assignment will be given.

Judicial precedent, a procedure whereby judges follow previous case with sufficiently similar facts, regulates case law, which is crucial to protect law stability. As MacCormick said: “to understand case law… is to understand how it is that particular decisions by particular judges concerning particular parties to particular cases can be used in the construction of general rules applying to the actions and transactions of persons at large.” (James, 2010) Judicial precedent applies to the doctrine of stare decisis. That is to not disturb the decisions that are settled. For instance, through the stare decisis, the House of Lords held that the manufacturers owed a duty of care to their ultimate consumers of their goods in the case of Donoghue v Stevenson (1932), creating a binding precedent followed in Grant v Australian Knitting Mills (1936) in respects of duty of care and neighbor principle. The binding precedent is a legal principle formed by the ratio decidendi, the reason for the decision. This means that the ratio decidendi must be followed with the recognition of the legal reason for the decision in the previous case (Jacqueline, 2010). The remainder of a judgment is Obiter dicta. It is a statement made by the way, which though is not binding but can be persuasive in the future cases.

Statutory interpretation is the process of how the statutes interpreted and applied by a judge. There are four approaches developed to deal with the task of interpretation, including literal rule, golden rule, mischief rule and purposive rule. When literal rule is applied, the words in the statutes are given their dictionary, original or everyday meaning, with the respect to the will of Parliament. For instance, in Whitley v Chappell (1868), with the application to literal rule, the court held that the defendant was not guilty since a dead person is not, in the literal meaning of the word, ‘entitled to vote’. Golden rule was defined in Grey v. Pearson4 (1857), “the ordinary sense of the words is to be adhered to, unless it would lead to absurdity, when the ordinary sense may be modified to avoid the absurdity but no further.” One of the illustrated cases is Re Sigsworth (1935). A son murdered his mother entitled to nothing since the court applied golden rule to modification to prevent repugnancy and absurdity. Instead of determining what the Parliament said, the Mischief rule is applied to what Parliament meant. The Mischief rule was applied in Smith v Hughes (1871). Lord Parker CJ held that the activities of prostitution were in a “street or public place” for the intension of the Act to prevent the mischief of the impact of solicitation on the passers by. With a wider application, purposive rule is aimed to give promotion to the general legislative purpose emphasizing the provisions. Lord Denning stated “...we sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment by opening it up to destructive analysis”. In Cutter v Eagle Star (1998), instead of literal rule, purposive rule is...
tracking img