Creating Law in the UK

Creating practice of law in the UKParliament is the supreme law-making body in the UK. Statutes are above all, and Judges agency is to apply and interpret the statutes. There are four rules of interpretation, which have substantial throughout the history and some of which after long lasting disputes. Law in the UK is also dependant on the EU law, which should be stronger that domestic law. There are several courts in United Kingdom, on the top of the hierarchy lies the despotic Court, any actor direct there, cannot be overruled by any other court. Judges job is to interpret statutes, and in some cases, to invite law. But is it lawful that judge can strive new law? Here I am going to discuss whether decide do in some cases make new law, or do they apply the existing statutes and common law cases.The Law in United Kingdom comes as legislation, from the Acts of Parliament, or, from Common Law decisivenesss of the courts set as precedents. Legislation is superior to all other outsets of law judges job is to interpret and apply them in courts. Common Law is historically the oldest citation of law in the UK, all the law used to be made by judges on authority of the monarch. Precedents ensure the development of the legal system. So, this raises a question are judges still considered as law makers in United Kingdom? The traditional way of judicial law making is that judges should play no part in creative law making, they should just declare it. The declaratory theory of law, famously introduced by William Blackstone on the eighteenth century, verbalise the idea that judges do not make the law but only declare what it has always been1. The theory was famously opposed by stern Austin in Lectures on Jurisprudence Or, The Philosophy of Positive Law as childish fiction2. Nowadays the Declaratory Theory is widely opposed, it does not search to go together with todays changing society and technological development. In his book, Lord Reid called the opinion th at judges only declare law and do not make it a fairy tale that is not believed anymore3. Therefore, there has been a lot of debate on whether Blackstones theory is correct and judges do not real make law but merely declare it.After legislation comes Common Law precedents set by introductory decisions of cases, which is also a source of law making in the UK. The Doctrine of Precedent It is based on two principles position of a court in the court hierarchy and how equivalent is the mixture of law and fact in the two cases being considered. The key feature in common law cases is stare decisis, which means to stand by things decided. Highest is the Supreme Court (previously House of Lords), which is not bound by its own previous decisions. As said by Lord Chancellor Gardiner in The normal Statement, that too rigid adherence to precedent may lead to injustice and restrict the development of the law, which is why House of Lords should be able to depart from previous decisions4. The Doctrine of Precedent is meant to lead to predictable and consistent development of legal principles, and the reason for the Practice Statement was that if courts are strongly bound by precedent the law cannot evolve. It is rarely used, though, but sometimes controversially. Like the case of R v Howe5 which overruled the case of Lynch v DPP for NI6, and fundamentally changed the defence of duress. By decision made in the case of Howe, in my opinion, judges did not make new law, but rather complemented it. On the contrast, in the case of R v R7, where marital rape was decided to be illegal, seemed like a making of a new law by judges. So, in some cases the courts can overrule a certain previous precedent and in some cases, make new law.The primary law in UK comes as statutes. Four rules have developed throughout history to interpret statutes The literal rule, the golden rule, the mischief rule and the purposive approach, last one being the most modern. The Literal Rule states that th e oral communication of legislation should be given their ordinary natural meaning, though that might in some cases lead to an absurdity. Like in Fisher v Bell8 where the dawn knives sold were treated as an invitation to treat and was not therefore under the Act9 which clearly had the aim of prevent the exact matter. The second one, The Golden Rule, was described by Lord Wensleydale in Grey v Pearson as that if a literal meaning leads to absurdity, the grammatical sense of the word may be modified to countermand it10. The Mischief Rule is laid out in Heydons case by four things to consider when interpreting statutes, which in summary consists of what was the common law before, what it was missing, and what is parliament trying to resolve 11. Now, the most modern one of the rules is The Purposive Approach, which stresses the need to interpret legislation in a way to achieve its objectives. This approach gives judges a lot of flexibility of deciding cases, and might look like it g ives judges the power to make law. About interpreting statutes, Lord Simonds stated in his opinion against interpretation of statutes other than in a literal way, that the duty of courts is to interpret words as they are, however ambiguous they are, it is still not up to the judges to travel outside them on a voyage of discovery1 The Declaratory Theory of Law Oxford J Legal studies (2013)2 The Declaratory Theory of Law Oxford J Legal Studies (2013), originally from John Austin Lectures on Jurisprudence Or, The Philosophy of Positive Law3 Lord Reid, The Judge as Lawmaker (1972) 12 J Soc Public Teachers L 22 http//heinonline.org/HOL/LandingPage?handle=hein.journals/sptlns12div=10id=page= assessed 18 march 20174 The Practice Statement, House of Lords 1966 3 All ER 775 R v Howe and another and another appeal 1987 1 All ER 7716 Lynch v Director of Public Prosecutions for Northern Ireland 1975 1 All ER 9137 R v R(Rape marital exemption) 1991 4 All ER 4818 Fisher v Bell 1961 1 QB 39 4, 1960 3 All ER 7319 Restriction of offensive activity Weapons Act 1959, s 1(1).10 John Grey and Others, -Appellants William Pearson and Others, -Respondents (1857) 10 ER 121611 (1584) 3 Coke 7a 76 E.R. 637