My teacher is saying I haven't used seminar questions. I did work very hard on it. Could someone with a law background have a look at my portfolio and give some advice where should I improve? Thanks.
Portfolio: English Legal System Seminars and Reflection Question
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University
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Table of Cases
British Railways Board v Herrington [1972] AC 877.
Duport Steels Ltd v Sirs [1980] 1 All ER 529.
Fisher v Bell [1961] 1 QB 394.
London Tramways Co. v London County Council [1898] AC 375.
MPC v Caldwell [1982] AC 341.
Practice Statement (Judicial Precedent) [1966] 3 All ER 77.
R v Allen [1872] LR 1 CCR 367.
R v G and Another [2004] AC 1034.
R v Howell [1982] QB 416.
R v (Laporte) v Chief Constable of Gloucestershire Police [2007] 2 AC 105.
R v R [1991] UKHL 12.
Re Sigsworth [1935] 1 Ch 98.
Rex v Taylor [1950] 2 KB 268.
Royal College of Nursing v DHSS [1981] 2 WLR 279.
Smith v Hughes [1960] 1 WLR 830.
Sussex Peerage Case [1844] 11 CI& Fin 85.
Table of Statutes
Abortion Act 1967.
Administration of Justice Act 1925.
Equality Act 2010.
European Communities Act 1972.
European Convention on Human Rights, 1950.
Freedom of Information Act 2000.
Human Rights Act 1998.
Justice and Security Act 2013.
Offences Against the Persons Act 1861.
Protection of Freedoms Act 2012.
Restriction of Offensive Weapons Act 1959.
Street Offences Act 1959.
Cases and Theories
Introduction
Theoretically, the ordering of society is accomplished through the implementation and enforcement of law. Within the English legal system law is not simply enacted and enforced through law enforcement. While law enforcement may make an arrest based on a statutory provision, the statutory basis for the arrest will almost, always eventually end up before the judiciary for interpretation and enforcement. In other words, the administration of justice within the English legal system is complex and requires the cooperation of actors. The ordering of society therefore depends on the implementation, interpretation, application and enforcement of laws. Theorists such as Austin, Hart, and Dworkin assume that these factors can only take place if certain conditions are met. One of the main theoretical contentions is that laws must exist with punishment for breach of those laws in order for rational citizens to make the decision to voluntarily cooperate and obey the laws. This section discusses some of the important theories and cases. Of particular importance are the doctrine of judicial precedent, statutory interpretation and the role of law in the ordering of society. These three areas are selected because they come together to achieve the ordering of society.
The Formalist vs the Positivist Theory
The formalist theory holds that judges can and do make new law and this is consistent with Hart's views. Judge's make new laws through creativity and innovation in interpreting statutes or when deciding to exercise authority in the departure from a precedent. Indeed there is confirmation in Rex v Taylor [1950] 2 KB 268 where it was held that implicit in the judge's discretion was the discretionary authority to go against a precedent that was binding on the court.
Dworkin, took the positivist approach holding that judges do not make new law and in instances where they may come to the conclusion that a legislative provision is not complete, that would be a 'discovery' as opposed to a new law. Dworkin was of the opinion that if judges were free to make laws, that power would be removed immediately. Lord Scarman appears to agree with Dworkin's positivist view as he stated in Duport Steels Ltd v Sirs [1980] 1 All ER 521, if there was a perception among the public that judges were free to make and break laws based on discretionary powers, there would be a degree of panic and pressure would be put on Parliament to put a stop to or at the very least constrain the authority of the judiciary. However, as Galeza states, 'sometimes judges hypocritically support their wide discretion in the adjudication, which justifies Hart's theory.'
Arguably this occurred in the case of Royal College of Nursing v Department of Health and Social Security (see table and discussion in the next section of this portfolio). In Lord Diplock's discussion and interpretation of the Abortion Act 1967, he claimed that in attempting to prevent basement abortions, Parliament delegated abortion authority to medical practitioners only and this included nurses. Galeza suggests that there was nothing in the Abortion Act 1967 to suggest that nurses were medical practitioners with the know-how to carry out safe abortions without the intervention and assistance of a medical doctor.
Austin's Command Theory
John Austin argued in this book The Province of Jurisprudence that law was different from other rules since it was under the 'command of a sovereign body,' enabling the sovereign to 'enforce by means of punishment'. Sovereigns differ from one country to the next. In Great Britain, the Queen 'in Parliament' is the sovereign while in other states the sitting monarch holds all of the sovereign power. Still in other states, the sovereign may be a President.
When we look at criminal law, Austin's command theory carries significant weight. Under the criminal law, rules and regulations exist under statute and the common law dictating conduct and describing what is misconduct or specifically what is criminal conduct and where there is non-compliance, there are punitive remedies including penal fines or imprisonment. Still there are areas of law where the command theory cannot be supported. For instance, contract law provides penalties where a contract is breached, but there is not authority under law that can 'command us to make contracts in the first place.'
Likewise, family law does not order citizens to get married, but it does set out a set of rules and regulations for the dissolution of marriage and the division of marital property and custody of minor children of the marriage. As Elliott and Quinn state:
The rules about marriage and contracts could be described as rules giving power, in contrast to the rules imposing duties which comprise criminal law; they have different functions, but both types are legal rules.
This brings us back to Hart who theorized that there are a significant number of laws and rules that do not command action or inaction nor 'impose sanctions'. Laws are complex and dynamic and consist of any number of rules that renders it 'impossible to cover them all with the proposition that laws are commands.'
Dworkin's Constructive Interpretation Theory
Dworkin argued that judges are a part of the human community and as such they must assume that they are community entities and should reflect what the community perceives as just and fair. Law only has integrity if it promotes fairness and justice together with 'procedural due process, which provide the best constructive interpretation of the community's legal practice'. The integrity of the law is achieved through the law speaking 'with one voice'. This means that the judiciary must take the position that the law is 'structured on coherent principles about justice, fairness and procedural due process' and when judges are dealing with cases they must do everything within their power to ensure that the same sets of 'standards' are applied to each and every case so that fairness is extended to all. In other words, everyone who comes before the court must be assured of and receive equal treatment under the law. This applies to those who simply come into contact with the law as well.
Integrity of the law is achieved through the legislative and judicial processes. Thus legislators have an inherent duty to exert their efforts in ensuring that the law they enact is 'coherent' and on a moral basis. It is only after legislators produce what appears to be a morally coherent law, that judges are able to step in and carry the statute from there. In other words, although the legislators and judges are different arms of the political process and the running of the state, they have to cooperate and cull together resources that recognize and aim to accomplish a common course: the administration of justice fairly, and for the ordering of society.
According to Dworkin, constructive interpretation of the legal process is a precursor for a theory of adjudication. Constructive interpretation consists of three evaluative phases. The first phase is the pre-interpretive phase, the second phase is interpretive and the third phase is post-interpretive. At the pre-interpretive phase, the regulations and standards that make up the practice of law are identified. At the interpretive phase, the factors that were identified at the pre-interpretive phase are justified. At the post-interpretive phase, the actual needs of the practice are identified in terms of what was justified at the interpretive phase.
The interpretive phase is the most important phase as this is the point where what is proposes is 'consistent with the data identified as constituting the practice' at the pre-interpretive phase' and a 'justification' must be selected that is appropriate the best option. In other words, the judge must ensure that the decision made at the conclusion of a case is not only conducive to the facts of the case, but is consistent with previous rulings so that the court itself is demonstratively efficient, consistent and can be characterized as a having integrity.
Law and Social Ordering
Introduction
Law plays a multi-faceted role in the ordering of society. The role of law can be divided into two broad categories: macro functions and micro functions. Macro functions refer to those areas of law that are designed to deal with the managing and "ordering of society" generally. Micro functions refer to those "specific uses to which law is put" and are derived from macro functions. There are essentially six macro functions of law and they are, public order, political order, social order, economic order, international order and moral order. Micro functions include a number of laws that are designed to carry out the macro functions of the law and these include defining and sanctioning what amounts to "unacceptable behavior", limiting the powers of government, and assigning regulatory power to government agencies among others. In answering the reflective question above, this essay is divided into two broad parts. The first part of this essay discusses the macro functions of the law in ordering society and the second part of this essay discusses the micro functions of the law in ordering society.
Macro Functions of the Law in Ordering of Society
Public Order
Public order is often used to refer to the "Queen's peace" which means the maintenance of peace and the fluid flow of co-existence that represents a "normal state of society" and disruptions of this peace is a breach of what should be expected of a civilized society This understanding of public order can best be understood by an examination of what amounts to a breach of peace. In this regard, come guidance can be derived from R v Howell in which a breach of peace was defined as:
...whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.
The House of Lords confirmed this definition of a breach of peace in R v (Laporte) v Chief Constable of Gloucestershire Police. What can be concluded is that a breach of the Queen's peace can take place without an actual breach of peace occurring. It can occur if the threat to breach the peace exists.
According to Partington, the main way that order is maintained within the English legal system is through a system of civil liberties and boundaries that establish what is acceptable conduct and what are the consequences of unacceptable conduct. Civil liberties are defined by the Human Rights Act 1998 which in turn adopts and directly applies the European Convention on Human Rights 1950. Essentially, the protection of civil liberties within the parameters of the European Convention on Human Rights include the freedom of expression, freedom of religion, freedom of assembly, the right to life, a prohibition against torture, the right to a fair trial within a reasonable time, the right to due process and so on. These rights are not altogether absolute in that in the exercise of these freedoms and obligations, the deliberate encroachment of others' rights can amount to a breach of peace and therefore disrupt public order. For example, in the exercise of free speech, one might commit a hate crime by willfully inciting disaffection in racial or religious discrimination.
Public order is also maintained through the balancing of government powers against the freedoms of the private citizen. This is normally carried out in the interest of national security. For example, through the Protection of Freedoms Act 2012 the state's interests in preventing, detecting and prosecuting acts of terrorism are balanced against the individual's right to freedom with respect to the expansion of detention powers to a period of 2 weeks. The Justice and Security Act 2013 also permits a closed trial in instances where it would be a threat to national security should some sensitive information be revealed in public. As can be gleaned from the discussion in this section, the protection of public order is not straight forward and involves the balancing of a number of interests including the human rights of private citizens, national security and more importantly, maintaining the Queen's peace.
Political Order
According to Cerar, the idea that law and order is distinguished from politics is erroneous. Politics is a regulated phenomenon, and consist of institutions, some of which are enshrined in public administration and constitutional laws. Constitutional laws are embodied in a Constitution which is the laws and rules that regulate and establish the entire governmental system. Virtually all democratic countries have a written Constitution. However, Great Britain is not one of those countries. Although Britain does not have a written constitution, its constitution is embodied in convention and laws.
The constitution of the UK is embodied in a number of laws and documented by a number of arrangements. For example, the UK is a member state to the European Union and until such time as it formally leaves, is bound by the European Communities Act 1972 as amended, which limits the sovereignty of the UK's Parliament. By virtue of the European Communities Act 1972, the UK is bound by the treaties of the European Union 'without further enactment'. The 1972 Act therefore functions to 'limit' the 'legislative power' of the 'British Parliament'. The Human Rights Act 1998 also provides a constitutional framework for the incorporation of human rights protection and provides boundaries and limitations of government power over private citizens and private property. The Human Rights Act 1998 accomplishes this political order through the adoption of the European Convention on Human Rights, 1950.
Other constitutional acts are the Scotland and Wales Acts of 1998 which transfer powers from the English Parliament to the Welsh Assembly and the Scottish Parliament. The 1998 Acts serve to chart a legal regime for regulating the governments of England, Scotland and Wales. Another statute contributing to the political order and forming a constitution is the Freedom of Information Act 2000. The 2000 Act essentially establishes the right of the public to access to publicly held information and establishes which information is official secrets and therefore not subject to the free access rule. The 2000 Act also sets out the roles and duties of the Secretary of State, the Lord Chancellor and Information Commissioner in the management of information held by public agencies.
There are many more statutes that regulate the government's power and its relationship with citizens. While it may have been more efficient to place these various statutes describing the governments powers and limitations in one Constitution, it allows for a structure in which government powers and limitations can be altered more efficiently through statutory amendments, appeals or implementation. Under a constitution, changes would have to be made through referendum which takes a lot more time.
Social Order
Legal systems achieve social order when they function to promote and secure a mutual advantage. When the Paretian principle which is derived from Pareto economics, is applied, a mutual advantage refers to policies that 'benefits some and harms none'. According to Hardin, a 'legal system serves mutual advantage if, ex ante, it secures social order and the opportunity for prosperity'. Thomas Hobbes was of the opinion that order was achieved through the will and deliberate exercise of power by the sovereign. David Hume however argued that while the sovereign was required to accomplish order, social order could be accomplished through "spontaneous coordination' and based on tradition.
It is important to note that although Hobbes and Hume appeared to disagree on the intricacies of social order, they did agree that the sovereign played a significant role in accomplishing social order. It is without doubt that legal systems which is an arm of the sovereign state, is a pivotal part of social order. As Hardin points out, are "commonly quite specific" and "is often backed by powerful sanctions that make us comply with it." As Hardin reminds us, a legal system does not exist in a vacuum. It must be created and this is where the sovereign state comes in. Legal systems are created and maintained by the sovereign state. It is within these legal systems that law operates to issue rules for social order and penalties for abridging social order rules.
Social order is not always about rules that are aimed at directing moral and ethical choices to safeguard against disorder in society. Social order also refers to the ordering of society. In Western democracies there are diverse people of different races, genders, sexualities, ages, nationalities, ethnicities and so on. In addition, there are diverse social statuses with individuals and groups ranging from abject poverty to excessive wealth. Both civil and criminal law appear to advance a social order that protects the wealthier from the poor as these laws tend to be vested in the protection of property rights.
When we look more closely at the law we can agree with Hardin that the law is designed to maintain social order by creating a mutual advantage that maintains social order and at the same time facilitates opportunities for all to be prosperous. In the UK, this view of social order is achieved through the Equality Act 2010. While the primary aim of the 2010 Act is to ensure equal treatment of all before the law and to prevent discriminatory treatment on the basis of race, nationality, sexuality, gender, disability, ethnicity, religion and so on, the Act also provides for special treatment of the economically disadvantaged. Specifically, Section 1(1) of the Equality Act 2010 provides that:
An authority to which this section applies must, when making decisions of a strategic nature about how to exercise its functions, have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage.
Thus, according to Partington, the law is designed to create and maintain social order by facilitating the legal framework that makes it possible for 'social, welfare, and educational policy making' that 'seeks to assist in the promotion of a new social order'. Partington argues that while law attempts to create a new social order through equality, non-discrimination and greater assistance to the disadvantaged, law still protects property rights and in doing so, supports and promotes the current social order.
Economic Order
The role of law in the establishing and maintaining of economic order is vastly similar to the role that law plays in social order. The economic order in the UK and the remainder of the Western world is based on capitalists' concepts. Capitalism is structured around the belief that private property ownership creates 'legally enforceable rights' and this includes rights in real or personal property. Law creates and protects economic order by prescribing how those property rights are acquired, how they are transferred, how they are earned, how ownership is defined, and taxed.
The law establishes and promotes economic order through the recognition and application of the law of contracts. As Partington puts it:
Recognition of the legally enforceable bargain (contract), breaches of which can be litigated in the courts, has been an essential tool in the development of the modern market capitalist economy.
Still, law also recognizes that contracts can involve inequality of bargaining power and thus this can render the economically weaker party exploitable by the economically stronger party. Thus laws are designed to ensure greater equality of bargaining power and the main purpose of these laws are to protect the weaker consumer from the greed of the stronger corporate giant.
International Order
The law plays a significant role in the international order. In this regard, international law consists of international convention, treaties, and customary law. Customary law is the laws of nations that are shared with one another. Treaties and conventions are international instruments to which membership imposes contractual relations between states that regulate international commerce, international trade, tort involving foreign elements, human rights, international crime such as human trafficking or illicit trade, and so on. Many of these instruments result in model laws that are ratified by member states and become a part of national law.
Although many of these international instruments are unenforceable internationally, they are generally obeyed. Unlike other legal systems, the international legal system is not a 'single, coherent practice or institution'. Rather, international law is a 'miscellaneous aggregate of rules, principles, ideals, procedures, policies, decisions, commands, recommendations, agreements, customs, precedents, and other normative elements.' As a result, it is difficult to conceptualize international law in terms of identifying and defining what international law is. Yet, at the same time, international law is decidedly an 'unambiguous and coherent conception of international order' organized around an 'international society' which is subject to a constitution 'regulated by a common body of non-instrumental laws'.
Within these parameters, states perceive themselves as a part of this international system or society and subject to shared concepts of international law. Specifically, customary international law and the UN Charter recognize the autonomy and independence of nation states. Therefore, while not specifically bound by a central legal authority, states are minded to obey international law because it is the same law that upholds their autonomy and independence. What occurs is a legal climate that is fortified by 'mutual respect'. While there is no guarantee that states will not use aggression, the international legal system establishes a legal order in which it is unlikely to occur or at least it is limited to a comfortable degree.
Moral Order
According to Hart, law plays a significant role in establishing and enforcing moral order. Hart gave two reasons. First, law is informed by morals. Secondly, morals are derived from law. Therefore, law and morals are intricately intertwined to the extent that law is a reflection of morals and law establishes moral standards. This is an important observation because law therefore functions to regulate the moral order.
Hall and Tunick explains the role of law in moral order. According to Hall and Tunick, many people would simply refuse to act in certain ways simply because the action would be immoral. Other people however, would require knowledge that a certain immoral act would result in some form of penalty. Laws are accompanied by punishment or 'damage awards, executed after a judicial determination according to procedures laid out by an authorative governing body'. Morals on the other hand, have no such enforcement regiment and instead, rely on 'individual conscience, social pressure, or perhaps the fear of God.' Law is necessary for establishing and maintaining the moral order as there are members of society who do not have the conscience nor the fear of God nor the fear of social pressure to observe and respect morals.
Micro Functions of the Law in Ordering Society
As previously noted, the micro functions of law in the ordering of society are derived from the macro functions and to this end the micro functions are more specific. Partington gives a number of examples of the micro functions of law and begins by explaining that some behaviours are unacceptable, but not always the subject of legal bans. For example, it is perfectly legal to get intoxicated after you have reached the age of 18. This may be unacceptable behaviour but not a crime. However, where an individual 18 years of age or older drives while intoxicated, the behaviour is not only unacceptable, but it is against the law. The law therefeore establishes boundaries around unacceptable behavior when it gets to a point where the life, limb and property of others are at risk of injury due to the unacceptable behaviour of another or others.
The criminal law therefore establishes boundaries and consequences for unacceptable behaviour and in doing so establishes and maintains order. However, as Partington cautions, criminal law is not the only branch of law that functions to establish and limit unacceptable behaviour. Civil law performs the same function. For instance, when a contract is contravened by one of the contractual parties, the aggrieved party may seek remedial action or damages from the court. Similarly, criminal law defines unacceptable behaviour and establishes punishments for that behaviour.
Conclusion
As this particular essay reveals there are a lot of factions in society that require order. Without order, there would be chaos or a purely uncivilized society. Law makes it possible to achieve order in society, the international arena, the economy, politics, and so on. Each of these factions of society are interconnected. When we look beyond the mere definition of each faction we can see a connection. For example, the economic order is an important place for testing morals and individual judgment. If we remove the law the regulations that call for the exchange of bargains, performance and consideration, we would be left with economic arrangements where the weak are exploited by the poor. This is not a mutual advantage as it benefits one person and harms another. We therefore risk ending up with a society in which opportunities for prosperity are for the stronger citizens to the complete detriment of the weaker citizen. This can lead to resentment, social unrest and tensions that can only end in revolution and other forms of disorder.
As it, laws that protect private property are looked upon as fair when everyone has an equal opportunity to gain access to private property and to become prosperous. If you remove the equal opportunity, you have citizens questioning why they should be loyal to a law that benefits some and harms others. The political order installs a system of justice and law and order that is fair and seeks to achieve a mutual advantage for citizens. A fair and impartial judiciary is a part of that political order. In other words, all factions are part and parcel of the same order and where they function together to achieve a mutual advantage, citizens are more likely to keep the peace. The laws protecting citizens from harm cannot be accepted if the laws deliberately harm them. The laws prescribe morals and reflect morals that are common to mankind and are not discriminatory on the basis of race, social status, gender, sexuality, religion and so on.
The Doctrine of Precedents/Stare Decisis
Introduction
The doctrine of precedents or stare decisis is predicated on the belief that it is a 'natural practice of the human mind, whether legal or non-legal to accept the same pattern in similar or analogous cases.' Stare decisis is a Latin term which translates to mean, 'to abide by,' or to 'adhere to, decided cases.' In practice this means that where a court establishes a standard and principle of law based on a specific set of facts, courts will follow this standard and principle in all cases with consistent facts and circumstances. This essay is divided into two main parts. The First part of this essay describes the doctrine of precedents and the send part examines its significance for the English legal system.
The Doctrine of Precedents
The doctrine of precedents operates to establish the binding nature of a past decision on a court. Within the English legal system, the precedent of a lower court is only binding on that court and inferior courts. A higher court can over-rule a precedent if it finds that it was unreasonably decided. In practice lower courts typically refer to precedents of higher courts. The binding element of the case is the 'ratio decidendi' or 'reason for deciding'.
The House of Lords laid out the principles for the doctrine of precedents in London Tramways Co. v London County Council. In this case the House of Lords expressed the view that when judgements are rendered at the highest level of the appellate process, those judgments should be final and binding on lower courts and the court rendering the judgment in the interest of certainty and consistency of the law. The circumstances in which the court could depart from the doctrine of precedents was established and included cases where a previous judge made a decision that was erroneous. The decision would be erroneous if it was decided on the basis of a statute that had been repealed or a misinterpretation of an existing rule of law or statute. In such a case, the court seized of a similar matter would not be bound by the previous decision founded on error.
Many years later the doctrine of precedents was revisited in Practice Statement (Judicial Precedent). In the Practice Statement, it was decided that the 'rigid adherence to the precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law.' Essentially, the standards for departure from the doctrine of stare decisis, set by the previous case of London Tramways, were expanded. In the Practice Statement, the court was permitted to depart from the doctrine of stare decisis if it appeared to be fair to do so and unfair to adhere to the doctrine.
Courts have shown that they are amenable to departure from the doctrine of stare decisis where it appears to be fair to do so. For example, the Caldwell recklessness test established in MPC v Caldwell was departed from in a later case. In MPC v Caldwell, an intoxicated hotel employee set fire to the hotel and caused significant damages. At his criminal trial for the fire, the Caldwell recklessness test which required judging the defendant's recklessness objectively. The objective recklessness test required asking whether or not an individual in the same circumstances as the defendant would have acted as the defendant did and if such a defendant could reasonably be expected to know the risk of harm and damages his behaviour would cause.
The Caldwell recklessness test however was found to be inappropriate and unfair in a case with similar facts and circumstances. In the case in question, the offenders were minors and could not have reasonably appreciated the risks that they were taking by deliberately setting a fire. Therefore, the court applied a subjective test and in doing so departed from the Caldwell recklessness test. The court felt that it was entirely unfair to hold minor children to the same standards that adults are held to when attempting to determine the reasonableness of their decisions and behaivours.
A few years after the Practice Statement, the House of Lords departed from a previous decision where it was held that owners and occupiers of realty did not owe trespassers a duty of care. The House of Lords departed from this rule in British Railways Board v Herrington. The case involved the electrocution of a six year old who had been playing and ended up on a railway line that had been corralled by a fence which had fallen part that the boy was able to gain access to the rail. In deciding to depart from the rule that trespassers were not entitled to a duty of care, Lord Pearson ruled that the previous rule:
...had been rendered obsolete by changes in physical and social conditions and has become an incumbrance impeding the proper development of the law. With the increase of the population and the larger proportion living in cities and towns and the extensive substitution of blocks of flats for rows of houses with gardens or backyards and quiet streets, there is less playing space for children and so a greater temptation to trespass. There is less supervision of children, so that they are more likely to trespass...There is considerably more need than there used to be for occupiers to take reasonable steps with a few to deterring persons especially children, from trespassing in places
A case of significant interest is the case of R v R in which the House of Lords dealt with the common law proposition that a man, through marital concepts could not be charged with rape since marriage automatically conferred upon the man the wife's consent. In R v R, the House of Lords ruled that:
The common law is, however, capable of evolving in the light of changing social, economic and cultural developments. Hale's proposition reflected the state of affairs in these respects at the time it was enunciated. Since then the status of women, and particularly of married women, has changed out of all recognition in various ways which are very familiar and upon which it is unnecessary to go into detail. Apart from property matters and the availability of matrimonial remedies, one of the most important changes is that marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband. Hale's proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and respective of the state of her health or how she happens to be feeling at the time. In modern times any reasonable person must regard that conception as quite unacceptable.
The obvious implications are that the doctrine of precedents or the stare decisis doctrine are favoured in the United Kingdom. At the same time, the House of Lords have shown that they will not blindly apply previous precedent. Since the passage of the Practice Statement, the House of Lords have been consistent in their resolve to not allow new conditions and circumstances to be decided on the basis of old precedents that no longer have relevance.
The Role of the Doctrine of Precedents in the English Legal System
The doctrine of precedent is especially important for creating consistency in the courts and in doing so fosters confidence in the integrity of the law. This consistency also comes with certainty of outcome and the ability to negotiate and settle cases outside of the court. This can reduce the litigation load for courts. With this certainty, litigants can predict outcomes and this can temper litigious behaviour.
Farber identified three broad reasons for the precedent process. First, precedents benefit all decision-makers, not only judges. Secondly, precedents are beneficial to the courts, and finally, precedents help to establish constitutional law. Specifically, decision-makers at any level save time by referencing previous decisions based on the same set of facts and circumstances. It is impractical to expect that each court trial will involve a debate over issues that have already been tried and tested. For example, in a constitutional case involving civil rights, it would be entirely impractical to argue points that have already been decided for years such as whether specific actions fall within the scope of the constitutional case before the court. Moreover, without precedents, courts would render inconsistent judgements and the outcome would be very unpredictable. This would result in too much uncertainty and therefore a lack of confidence in the judicial process.
Overall, the doctrine of precedents shapes the court system in a way that supports the constitution. It allows courts to proceed with significant efficiency. In addition to saving time among the judiciary, the doctrine of precedents no doubt motivates the judiciary to be innovative and evaluative in light of the fact that they may be creating a precedent. Precedents are important efficiency tools because judges vary in their philosophies and preferences and as such, precedents force judges into 'convergence' which weeds out diverse rulings on the same factual issues. Precedents are therefore valuable because they prevent 'frequent defections from a established precedent' which if allowed, would 'undermine the process of converging to efficiency'.
In discussions about precedents it has been debated whether judicial precedents make law or simply make declarations about what the law is. In many cases where there are no statutory basis for describing an offence, judges to make law and this is often referred to as common law. For example, the Office for National Statistics points out that the offence of homicide which covers murder and manslaughter are not defined by statutes and are therefore common law offences. Thus it is reasonable to presume that judges do make law and this law is established and circulated through the doctrine of precedents.
Based on the discussion in this essay, it can be concluded that judicial precedents play a significant role in the English legal system. First, judicial precedents operate to close gaps in the law. For example, a statute or a previous judgment may establish a rule of law in a commercial context. Such a rule of law may be the acceptance of documentary evidence defined in terms of hard copies. However, digital images may not have been contemplated at the time of legislation and judgement. A judge seized of a case may take that opportunity to classify digital documents as documentary evidence. This establishes a precedent which is in essence judge-made law. In addition to filling gaps in the law, the doctrine of precedents essentially codifies the common law and facilitates efficiency.
Conclusion
The doctrine of precedent is unique to common law systems and in particular the English legal system. The fact that it has been in force for hundreds of years speaks volumes for its effectiveness. Based on the discussion in the essay above, it is at least clear that the problems that the withdrawal of the doctrine of precedent would cause is the primary reason for keeping it around. The main concern is the lack of certainty, consistency and predictability. This would not only create a lot of confusion and chaos in the legal system, it would impact the confidence that the public generally have in the judiciary and their ability to identify and administer justice. There is a lot of concern that judges would fall into a practice of setting aside case after case so that the idea of common law would be a thing of the past. In addition, statutory interpretations that have become fortified by judicial decisions would constantly change. The law itself would become a state of disorder. While legislators can remedy this by implementing laws that codify law, judges will still have to make decisions and interpret statutes. The status quo is fair and it allows for judges to depart from a precedent if it is outdated or the circumstances and conditions have changed to such an extent that the rule of law contained in the judgement is inconsistent with the reality of today.
Statutory Interpretations
Introduction
Statutes are described as complex sources of law because legislators often frame them in very narrow terms or very broad terms. In order to prevent bias and individual philosophies interfering with objective judgments, judges in their declaratory roles abide by a set of methodologies for interpreting statutes. The judiciary uses rules of construction and rules of language to interpret statutes. The rules of construction are the main rules and include literal, golden mischief and purposive rules. These rules are discretionary in that judges are free to select which rule of construction is best suited to the statute at hand. This essay is divided into two main parts. The first part of this essay will discuss the rules of construction and the second part of this essay will discuss the rules of language.
Rules of Construction
The Literal Rule
In Sussex Peerage Case [1844] 11 CI& Fin 85, Tindal CJ explained that the literal rule should be used. Specifically, Tindal CJ stated that the:
...only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of Parliament which passed the act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver.
It is important to note, that the literal rule contemplates that it will be applicable where the intention of the legislator is clear and this is frequently not the case. However, judges will always look to the literal rule prior to attempting one of the other rules. Judges look at the statute and attempt to give the words contained in the statute its ordinary dictionary meaning.
In the case of Fisher v Bell [1961] 1 QB 394, a shop vendor exhibited a flick knife described as an ejector knife. Pursuant to Section 4 of the Restriction of Offensive Weapons Act 1959, it was an offence to sell or offer for sale a flick knife. The prosecution argued that the shop vendor offered a flick knife for sale contrary to Section 4 of the Restriction of Offensive Weapons Act 1959. The shop vendor's defence was that no such offer had been made. The Queen's Bench Divisional Court applied the literal meaning of the statute and ruled that the display of an item in a shop window with a price attached to it was not an offer for sale, but rather an invitation to treat and therefore no contravention of the 1959 Act took place. The court went on to note that there was no indication in the Statute that Parliament intended that the words offer for sale should mean anything beyond what it means in the law of contract.
The literal rule may lead to an unfair result. For example, under the Street Offences Act 1959, it was an offence for public solicitation. In Smith v Hughes [1960] 1 WLR 830, prostitutes solicited from private windows and balconies and were charged under the Street Offences Act 1959. If the literal rule had been used the prostitutes would have escaped successful prosecution and this would have been an unfair outcome because despite the private nature of their solicitation, they were still observable by the public.
The Golden Rule
The purpose of the golden rule is to ward off the unintended consequences of applying the literal rule. This was observed in Smith v Hughes where the literal rule was ignored in favor of the golden rule. The golden rule was therefore used in Smith v Hughes because the conduct complained of was exactly what the legislators intended to prevent through the passage of Street Offences Act 1959.
In general, the court can take a narrow or wider view of the golden rule in deciding that to use the literal rule in interpreting a statute will lead to an unsatisfactory result. The narrow view was used in R v Allen [1872] LR 1 CCR 367. In R v Allen, Section 57 of the Offences Against the Persons Act 1861 applied. Under Section 57 it was an offence to get married if the initial spouse was not dead since divorce was not possible at the time. There were two possible interpretations of the word marry as the defendant was charged under Section 578 of the 1861 Act. The court considered that the literal interpretation of the word marry would mean that the defendant had not married since he could not legally marry another while his spouse was still alive. The other possible meaning of the word marry was to participate in a marital ceremony and in order to give effect to the legislators' intention the court took the narrow view and found that participating in a marital ceremony was consistent with the intention of the act and the word meaning as used in the act.
The wider view was used in Re Sigsworth [1935] 1 Ch 98. On the facts of the case, the Administration of Justice Act 1925 provided for the devolution of an estate of an individual who died intestate so that the estate was inherited by the next-of-kin. In this case the mother was murdered by her son who was the next-of-kin. There was nothing in the 1925 Act to suggest that the murderer could not benefit from his crime. It was held that the use of the literal rule would produce an unjust result and therefore the golden rule was used to stretch the meaning of the intestacy rule in the 1925 Act.
The Mischief Rule
The mischief rule is used to give statutory provisions the meaning that was intended by the legislator. The court asks 'what was the mischief which Parliament was trying to address? And then seeks to resolve any ambiguity in the working to reflect the legislative intention.' One way to accomplish this is by searching the discussions held by Parliament in passing the original Bill. The mischief rule was applied in the Smith v Hughes (cited above) to avoid an ambiguity posed by the use of the literal rule.
In Royal College of Nursing v DHSS [1981] 2 WLR 279, the Abortion Act 1967 was tested using the mischief rule. The Abortion Act 1967 provided that it was a defence to an abortion if a medical practitioner could prove that the conditions were satisfactory. The Royal College of Nursing challenged the supposition that nurses could conduct abortions under the Act. It was held that the purpose of the Act of 1967 was to avoid basement variety abortions and as a result, nurses could carry out abortions.
The Purposive Rule
The purposive rule is used when the court interprets statutes while taking into account, the purpose of the statute. This is similar to the mischief rule. The court will look at the reason the statute was implemented and its purpose although it can mean that the ordinary meaning of words in the statute are lost. The purposive rule was intended to be used with membership into the European Union. Therefore, the purposive rule is often used with regards to European Union law. Section 2(4) of the European Communities Act 1972, judges are required to take the purposive approach and give effect to European Union law in the interpretation and application of domestic law.
Language Rules
Expressio unis est exclusion alterius: 'to say one thing is to exclude the others'. Where a list appears in a statute the court will generally conclude that if something is not on the list, it was the legislator's intention to exclude it. For example a statute penalizing individuals for owning a dangerous wild animal and provides a list of dangerous wild animals, it can be concluded that if an animal is not listed it is not a dangerous wild animal within the meaning of the statute.
Noscitur a sociis: 'known by the company it keeps.' This means that the statute or words in the statute can be interpreted by reference to its context.
Eiusdem generis: 'of the same type.' Here a list may appear but in words that are generalized which opens up the possibility of other items being included on the list. For example, the word 'other offensive weapons' in a statute leaves open the possibility of including a wide list of weapons.
In pari materia: 'upon the same matter or subject'. According to this phrase any ambiguity in a statute can be resolved by reference to other legislative provisions on the 'same subject matter' if the legislative provision does not refer to 'another statute'.
Conclusion
Statutory interpretation appears to be a complex process. As discussed, statutes are complex and are aimed at specific outcomes. Judges not only have to identify what the intended consequence is, but also how to interpret the statute to achieve that consequence and to avoid an untended consequence. A number of discretionary rules have been developed over time to help judges in interpreting statutes to ensure intended consequences and to avoid unintended consequences. These rules are discretionary and therefore permits the judiciary the flexibility they need to ensure that statutes achieve the ends of justice that they are intended to achieve.
Reflection Questions:
Question 1: What role does law play in the ordering of society?
Question 2: What is the doctrine of precedents and what role does it play in the English Legal System?
Question 3: What is the significance of statutory interpretation?
Question 1: What role does law play in the ordering of society?
As we look back on the role that law plays in the ordering of society we come to the realization that without law the economy, the society, political institutions, morality, and international order would be in chaos. Law either through specific statutory provisions prescribes civil and criminal parameters for behaviour and sanctions for failure to comply. By taking this approach, civil and criminal disobedience, although particularly high, would be significantly higher to a point where the ordering of society would be a mammoth task doomed for failure. Theory and case law on the role of law in the ordering of society reveals that law acts as the conscience and reasoning of the man who cannot be counted on to be a rational actor. The rational actor would think about the gains and disadvantages of acting in ways that bring harm to himself, and/or to others and would decide the harm was not worth the pay-off. A rational man would have a conscience about his or her behaviour and how it can be detrimental to an unwitting individual.
Unfortunately, humanity has a fair share of irrational human beings. Without law prescribing morals, acceptable behavior, unacceptable behaviour and punishment for failing to act accordingly, the concept of free enterprise and human rights would be a misnomer. Irrational actors would not only have their way with individual property, they would very likely have their way with the political ordering and this would no doubt flow over into the international order. There is no telling where this would end or how it would end. We may not have reached the level of civility that we have today. We may have already fought World War III.
With law currently ordering society we are already confronting crises in the economy, armed conflicts, crimes against humanity contrary to international conventions, domestic crime, international crime, domestic terrorism, international terrorism and so on. I am forced to reflect on the idea that if we are confronting so may levels of unlawfulness in society with enforceable laws, one can only imagine just how unlawful a world we would be occupying now.
Question 2: What is the doctrine of precedent and what role does it play in the English Legal System?
Upon reflection I would describe the doctrine of precedent as a system in which the judiciary keeps records of decisions that either create or clarify new and old laws respectively. The doctrine of precedent is a system through which the courts create and document judgments and those judgements are binding on lower courts. However, only the higher court can depart from a precedent and only if there are changes in the current times that render a previous judgment obsolete or the previous judgment was erroneous or was absurd.
Academics and practitioners alike have praised the doctrine of precedent on the grounds that it does save a lot of time and resources and like the role of law in society, it prevents a major meltdown of resources. If judges, lawyers and clients had to argue their cases from scratch without reference to anything other than the statutes available to them, the court would become inundated with dockets packed way beyond capacity and this would in an indirect way lead to the collapse of society. Because with the courts tied up with full dockets, there is no telling how many criminal offenders would be released on bail and therefore placed back in society where thy have to learn to co-exist with fellow humans again.
I have considered how a lack of precedents would also directly impact the legal profession and those who rely on it for a number of reasons other than having to report for jail. In the absence of precedents our main source of law would likely be codes of practice and codes in general. Therefore, a lack of knowledge about the case that one's boss or someone else may have against him/her, may force innocent people from the judgment seat or out of safe communities on the basis of uncertainties about the possible outcome of a case. This is because, precedents have been found to create consistency and certainty in the judicial system. The uncertainty and the inability to predict legal outcomes can either open the floodgates or drive potential litigants with a justified sense of grievance out of the courts. This is particularly problematic for Britain where statutes are scattered and voluminous.
In addition, the doctrine of precedent has served a moderating function among the judiciary. It recognizes that judges are predisposed to have diverse philosophies and preferences. If judges were not bound by judicial precedents they would each decide cases based on their own preferences and philosophies and this would render the common law unpredictable, and uncertain. The intended ordering of society that is associated with law, would be lost. Cases based on the same facts and circumstances would be decided differently. The idea of equality before the law would be meaningless. This could create disorder and social unrest in society.
Upon reflection, it can be argued that the doctrine of precedents plays a significant role in the ordering of society. It creates equality before the law and it serves to cultivate confidence in the judiciary and therefore, in the justice system. The doctrine of precedent does not only ensure that the courts are organized and efficient, but also establishes law and order in society by providing access to a predictable, certain and consistent system for the administration of justice in a fair and partial way.
Question 3: What is the significance of statutory interpretation?
Statutory interpretation serves a significant purpose in the administration of justice. Statutes are complex and quite often if interpreted literally can lead to an absurd or unfair and unjust result. Therefore, the judiciary uses tools of construction that allow them to interpret statutes to ensure an outcome that is consistent with the intended consequence of the statute. For example, if a statute intends to prevent bigamy and further intends to punish those who commit bigamy and in doing so criminalizes marriage to two or more persons, the word marriage cannot be given its literal meaning. This is because upon marrying the first time, all subsequent marriages are null and void. If the statute took on the literal meaning of the word marriage, everyone charged with bigamy would be acquitted because they were not literally married to two or more individuals. The unintended consequence would be, a statute that is inoperable and unenforceable.
The judiciary recognizes these unintended consequences and interpret statutes to ensure that these unintended consequences do not occur. This ensures that law and order are maintained so that the mischief that the legislators are addressing are addressed adequately. Judges are also keenly aware that legislators cannot always contemplate all of the exigencies that might occur in the administration of justice. Therefore, the judiciary will use tools such as the mischief rule, the purposive rule, the golden rule and the literal rule to ensure that justice is accomplished appropriately.
When I reflect on statutory interpretation I cannot help but come to the conclusion that the judiciary plays a part in the making of law. While Parliament enacts the law, the judiciary interprets it and in doing so, declare exactly what the statute regulates and how it regulates. This together with the doctrine of precedent places the judiciary in a unique position to not only make law, but to fill gaps left by Parliament for the more efficient ordering of society.
Conclusion
Looking back at the role of law in societal ordering, the doctrine of precedent and statutory interpretation, it is reasonable to conclude that each of these factions of the English legal system combine to ensure the macro functioning of the law for societal order. Indirect ordering takes place. The legislators, very well aware that the judiciary has the last say with regards to statutes and will refuse to use the literal rule when statues are ambiguous and can therefore result in inconsistent and absurd outcomes, legislators will do their best to safeguard against enacting statutes than can significantly altered by the court. A system of checks and balances therefore takes place. This system of checks and balances constrains the power of the legislators in that they may not enact laws that are unconstitutional or will have an unfair, unjust and absurd outcome. If they do enact those kinds of laws, the judiciary will interpret those laws to have a fair and just outcome.
Upon reflecting on the material covered in this portfolio, it can be concluded that the judiciary plays the most significant role in the creation and maintenance of law and order inn society. Although legislators are elected officials and are charged with the responsibility of debating and enacting statutes, the judiciary has the final say in how the law is interpreted and applied. Thus when we look at the theories of Austin, Hart, and Dworkin, the two arguments advanced in that judges do not create law and that they do create law, both arguments are true. The legislators create law and the judiciary has the final say as in it is the judiciary that interprets and enforces the law. Without the judiciary, the legislators' jobs would be entirely futile as they would make laws that would be unenforceable, unless they created a police state. If that were the case, law and order would not be achieved. Law and order would be forced.
Portfolio: English Legal System Seminars and Reflection Question
Name
University
Course
Date
Table of Cases
British Railways Board v Herrington [1972] AC 877.
Duport Steels Ltd v Sirs [1980] 1 All ER 529.
Fisher v Bell [1961] 1 QB 394.
London Tramways Co. v London County Council [1898] AC 375.
MPC v Caldwell [1982] AC 341.
Practice Statement (Judicial Precedent) [1966] 3 All ER 77.
R v Allen [1872] LR 1 CCR 367.
R v G and Another [2004] AC 1034.
R v Howell [1982] QB 416.
R v (Laporte) v Chief Constable of Gloucestershire Police [2007] 2 AC 105.
R v R [1991] UKHL 12.
Re Sigsworth [1935] 1 Ch 98.
Rex v Taylor [1950] 2 KB 268.
Royal College of Nursing v DHSS [1981] 2 WLR 279.
Smith v Hughes [1960] 1 WLR 830.
Sussex Peerage Case [1844] 11 CI& Fin 85.
Table of Statutes
Abortion Act 1967.
Administration of Justice Act 1925.
Equality Act 2010.
European Communities Act 1972.
European Convention on Human Rights, 1950.
Freedom of Information Act 2000.
Human Rights Act 1998.
Justice and Security Act 2013.
Offences Against the Persons Act 1861.
Protection of Freedoms Act 2012.
Restriction of Offensive Weapons Act 1959.
Street Offences Act 1959.
Cases and Theories
Introduction
Theoretically, the ordering of society is accomplished through the implementation and enforcement of law. Within the English legal system law is not simply enacted and enforced through law enforcement. While law enforcement may make an arrest based on a statutory provision, the statutory basis for the arrest will almost, always eventually end up before the judiciary for interpretation and enforcement. In other words, the administration of justice within the English legal system is complex and requires the cooperation of actors. The ordering of society therefore depends on the implementation, interpretation, application and enforcement of laws. Theorists such as Austin, Hart, and Dworkin assume that these factors can only take place if certain conditions are met. One of the main theoretical contentions is that laws must exist with punishment for breach of those laws in order for rational citizens to make the decision to voluntarily cooperate and obey the laws. This section discusses some of the important theories and cases. Of particular importance are the doctrine of judicial precedent, statutory interpretation and the role of law in the ordering of society. These three areas are selected because they come together to achieve the ordering of society.
The Formalist vs the Positivist Theory
The formalist theory holds that judges can and do make new law and this is consistent with Hart's views. Judge's make new laws through creativity and innovation in interpreting statutes or when deciding to exercise authority in the departure from a precedent. Indeed there is confirmation in Rex v Taylor [1950] 2 KB 268 where it was held that implicit in the judge's discretion was the discretionary authority to go against a precedent that was binding on the court.
Dworkin, took the positivist approach holding that judges do not make new law and in instances where they may come to the conclusion that a legislative provision is not complete, that would be a 'discovery' as opposed to a new law. Dworkin was of the opinion that if judges were free to make laws, that power would be removed immediately. Lord Scarman appears to agree with Dworkin's positivist view as he stated in Duport Steels Ltd v Sirs [1980] 1 All ER 521, if there was a perception among the public that judges were free to make and break laws based on discretionary powers, there would be a degree of panic and pressure would be put on Parliament to put a stop to or at the very least constrain the authority of the judiciary. However, as Galeza states, 'sometimes judges hypocritically support their wide discretion in the adjudication, which justifies Hart's theory.'
Arguably this occurred in the case of Royal College of Nursing v Department of Health and Social Security (see table and discussion in the next section of this portfolio). In Lord Diplock's discussion and interpretation of the Abortion Act 1967, he claimed that in attempting to prevent basement abortions, Parliament delegated abortion authority to medical practitioners only and this included nurses. Galeza suggests that there was nothing in the Abortion Act 1967 to suggest that nurses were medical practitioners with the know-how to carry out safe abortions without the intervention and assistance of a medical doctor.
Austin's Command Theory
John Austin argued in this book The Province of Jurisprudence that law was different from other rules since it was under the 'command of a sovereign body,' enabling the sovereign to 'enforce by means of punishment'. Sovereigns differ from one country to the next. In Great Britain, the Queen 'in Parliament' is the sovereign while in other states the sitting monarch holds all of the sovereign power. Still in other states, the sovereign may be a President.
When we look at criminal law, Austin's command theory carries significant weight. Under the criminal law, rules and regulations exist under statute and the common law dictating conduct and describing what is misconduct or specifically what is criminal conduct and where there is non-compliance, there are punitive remedies including penal fines or imprisonment. Still there are areas of law where the command theory cannot be supported. For instance, contract law provides penalties where a contract is breached, but there is not authority under law that can 'command us to make contracts in the first place.'
Likewise, family law does not order citizens to get married, but it does set out a set of rules and regulations for the dissolution of marriage and the division of marital property and custody of minor children of the marriage. As Elliott and Quinn state:
The rules about marriage and contracts could be described as rules giving power, in contrast to the rules imposing duties which comprise criminal law; they have different functions, but both types are legal rules.
This brings us back to Hart who theorized that there are a significant number of laws and rules that do not command action or inaction nor 'impose sanctions'. Laws are complex and dynamic and consist of any number of rules that renders it 'impossible to cover them all with the proposition that laws are commands.'
Dworkin's Constructive Interpretation Theory
Dworkin argued that judges are a part of the human community and as such they must assume that they are community entities and should reflect what the community perceives as just and fair. Law only has integrity if it promotes fairness and justice together with 'procedural due process, which provide the best constructive interpretation of the community's legal practice'. The integrity of the law is achieved through the law speaking 'with one voice'. This means that the judiciary must take the position that the law is 'structured on coherent principles about justice, fairness and procedural due process' and when judges are dealing with cases they must do everything within their power to ensure that the same sets of 'standards' are applied to each and every case so that fairness is extended to all. In other words, everyone who comes before the court must be assured of and receive equal treatment under the law. This applies to those who simply come into contact with the law as well.
Integrity of the law is achieved through the legislative and judicial processes. Thus legislators have an inherent duty to exert their efforts in ensuring that the law they enact is 'coherent' and on a moral basis. It is only after legislators produce what appears to be a morally coherent law, that judges are able to step in and carry the statute from there. In other words, although the legislators and judges are different arms of the political process and the running of the state, they have to cooperate and cull together resources that recognize and aim to accomplish a common course: the administration of justice fairly, and for the ordering of society.
According to Dworkin, constructive interpretation of the legal process is a precursor for a theory of adjudication. Constructive interpretation consists of three evaluative phases. The first phase is the pre-interpretive phase, the second phase is interpretive and the third phase is post-interpretive. At the pre-interpretive phase, the regulations and standards that make up the practice of law are identified. At the interpretive phase, the factors that were identified at the pre-interpretive phase are justified. At the post-interpretive phase, the actual needs of the practice are identified in terms of what was justified at the interpretive phase.
The interpretive phase is the most important phase as this is the point where what is proposes is 'consistent with the data identified as constituting the practice' at the pre-interpretive phase' and a 'justification' must be selected that is appropriate the best option. In other words, the judge must ensure that the decision made at the conclusion of a case is not only conducive to the facts of the case, but is consistent with previous rulings so that the court itself is demonstratively efficient, consistent and can be characterized as a having integrity.
Law and Social Ordering
Introduction
Law plays a multi-faceted role in the ordering of society. The role of law can be divided into two broad categories: macro functions and micro functions. Macro functions refer to those areas of law that are designed to deal with the managing and "ordering of society" generally. Micro functions refer to those "specific uses to which law is put" and are derived from macro functions. There are essentially six macro functions of law and they are, public order, political order, social order, economic order, international order and moral order. Micro functions include a number of laws that are designed to carry out the macro functions of the law and these include defining and sanctioning what amounts to "unacceptable behavior", limiting the powers of government, and assigning regulatory power to government agencies among others. In answering the reflective question above, this essay is divided into two broad parts. The first part of this essay discusses the macro functions of the law in ordering society and the second part of this essay discusses the micro functions of the law in ordering society.
Macro Functions of the Law in Ordering of Society
Public Order
Public order is often used to refer to the "Queen's peace" which means the maintenance of peace and the fluid flow of co-existence that represents a "normal state of society" and disruptions of this peace is a breach of what should be expected of a civilized society This understanding of public order can best be understood by an examination of what amounts to a breach of peace. In this regard, come guidance can be derived from R v Howell in which a breach of peace was defined as:
...whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.
The House of Lords confirmed this definition of a breach of peace in R v (Laporte) v Chief Constable of Gloucestershire Police. What can be concluded is that a breach of the Queen's peace can take place without an actual breach of peace occurring. It can occur if the threat to breach the peace exists.
According to Partington, the main way that order is maintained within the English legal system is through a system of civil liberties and boundaries that establish what is acceptable conduct and what are the consequences of unacceptable conduct. Civil liberties are defined by the Human Rights Act 1998 which in turn adopts and directly applies the European Convention on Human Rights 1950. Essentially, the protection of civil liberties within the parameters of the European Convention on Human Rights include the freedom of expression, freedom of religion, freedom of assembly, the right to life, a prohibition against torture, the right to a fair trial within a reasonable time, the right to due process and so on. These rights are not altogether absolute in that in the exercise of these freedoms and obligations, the deliberate encroachment of others' rights can amount to a breach of peace and therefore disrupt public order. For example, in the exercise of free speech, one might commit a hate crime by willfully inciting disaffection in racial or religious discrimination.
Public order is also maintained through the balancing of government powers against the freedoms of the private citizen. This is normally carried out in the interest of national security. For example, through the Protection of Freedoms Act 2012 the state's interests in preventing, detecting and prosecuting acts of terrorism are balanced against the individual's right to freedom with respect to the expansion of detention powers to a period of 2 weeks. The Justice and Security Act 2013 also permits a closed trial in instances where it would be a threat to national security should some sensitive information be revealed in public. As can be gleaned from the discussion in this section, the protection of public order is not straight forward and involves the balancing of a number of interests including the human rights of private citizens, national security and more importantly, maintaining the Queen's peace.
Political Order
According to Cerar, the idea that law and order is distinguished from politics is erroneous. Politics is a regulated phenomenon, and consist of institutions, some of which are enshrined in public administration and constitutional laws. Constitutional laws are embodied in a Constitution which is the laws and rules that regulate and establish the entire governmental system. Virtually all democratic countries have a written Constitution. However, Great Britain is not one of those countries. Although Britain does not have a written constitution, its constitution is embodied in convention and laws.
The constitution of the UK is embodied in a number of laws and documented by a number of arrangements. For example, the UK is a member state to the European Union and until such time as it formally leaves, is bound by the European Communities Act 1972 as amended, which limits the sovereignty of the UK's Parliament. By virtue of the European Communities Act 1972, the UK is bound by the treaties of the European Union 'without further enactment'. The 1972 Act therefore functions to 'limit' the 'legislative power' of the 'British Parliament'. The Human Rights Act 1998 also provides a constitutional framework for the incorporation of human rights protection and provides boundaries and limitations of government power over private citizens and private property. The Human Rights Act 1998 accomplishes this political order through the adoption of the European Convention on Human Rights, 1950.
Other constitutional acts are the Scotland and Wales Acts of 1998 which transfer powers from the English Parliament to the Welsh Assembly and the Scottish Parliament. The 1998 Acts serve to chart a legal regime for regulating the governments of England, Scotland and Wales. Another statute contributing to the political order and forming a constitution is the Freedom of Information Act 2000. The 2000 Act essentially establishes the right of the public to access to publicly held information and establishes which information is official secrets and therefore not subject to the free access rule. The 2000 Act also sets out the roles and duties of the Secretary of State, the Lord Chancellor and Information Commissioner in the management of information held by public agencies.
There are many more statutes that regulate the government's power and its relationship with citizens. While it may have been more efficient to place these various statutes describing the governments powers and limitations in one Constitution, it allows for a structure in which government powers and limitations can be altered more efficiently through statutory amendments, appeals or implementation. Under a constitution, changes would have to be made through referendum which takes a lot more time.
Social Order
Legal systems achieve social order when they function to promote and secure a mutual advantage. When the Paretian principle which is derived from Pareto economics, is applied, a mutual advantage refers to policies that 'benefits some and harms none'. According to Hardin, a 'legal system serves mutual advantage if, ex ante, it secures social order and the opportunity for prosperity'. Thomas Hobbes was of the opinion that order was achieved through the will and deliberate exercise of power by the sovereign. David Hume however argued that while the sovereign was required to accomplish order, social order could be accomplished through "spontaneous coordination' and based on tradition.
It is important to note that although Hobbes and Hume appeared to disagree on the intricacies of social order, they did agree that the sovereign played a significant role in accomplishing social order. It is without doubt that legal systems which is an arm of the sovereign state, is a pivotal part of social order. As Hardin points out, are "commonly quite specific" and "is often backed by powerful sanctions that make us comply with it." As Hardin reminds us, a legal system does not exist in a vacuum. It must be created and this is where the sovereign state comes in. Legal systems are created and maintained by the sovereign state. It is within these legal systems that law operates to issue rules for social order and penalties for abridging social order rules.
Social order is not always about rules that are aimed at directing moral and ethical choices to safeguard against disorder in society. Social order also refers to the ordering of society. In Western democracies there are diverse people of different races, genders, sexualities, ages, nationalities, ethnicities and so on. In addition, there are diverse social statuses with individuals and groups ranging from abject poverty to excessive wealth. Both civil and criminal law appear to advance a social order that protects the wealthier from the poor as these laws tend to be vested in the protection of property rights.
When we look more closely at the law we can agree with Hardin that the law is designed to maintain social order by creating a mutual advantage that maintains social order and at the same time facilitates opportunities for all to be prosperous. In the UK, this view of social order is achieved through the Equality Act 2010. While the primary aim of the 2010 Act is to ensure equal treatment of all before the law and to prevent discriminatory treatment on the basis of race, nationality, sexuality, gender, disability, ethnicity, religion and so on, the Act also provides for special treatment of the economically disadvantaged. Specifically, Section 1(1) of the Equality Act 2010 provides that:
An authority to which this section applies must, when making decisions of a strategic nature about how to exercise its functions, have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage.
Thus, according to Partington, the law is designed to create and maintain social order by facilitating the legal framework that makes it possible for 'social, welfare, and educational policy making' that 'seeks to assist in the promotion of a new social order'. Partington argues that while law attempts to create a new social order through equality, non-discrimination and greater assistance to the disadvantaged, law still protects property rights and in doing so, supports and promotes the current social order.
Economic Order
The role of law in the establishing and maintaining of economic order is vastly similar to the role that law plays in social order. The economic order in the UK and the remainder of the Western world is based on capitalists' concepts. Capitalism is structured around the belief that private property ownership creates 'legally enforceable rights' and this includes rights in real or personal property. Law creates and protects economic order by prescribing how those property rights are acquired, how they are transferred, how they are earned, how ownership is defined, and taxed.
The law establishes and promotes economic order through the recognition and application of the law of contracts. As Partington puts it:
Recognition of the legally enforceable bargain (contract), breaches of which can be litigated in the courts, has been an essential tool in the development of the modern market capitalist economy.
Still, law also recognizes that contracts can involve inequality of bargaining power and thus this can render the economically weaker party exploitable by the economically stronger party. Thus laws are designed to ensure greater equality of bargaining power and the main purpose of these laws are to protect the weaker consumer from the greed of the stronger corporate giant.
International Order
The law plays a significant role in the international order. In this regard, international law consists of international convention, treaties, and customary law. Customary law is the laws of nations that are shared with one another. Treaties and conventions are international instruments to which membership imposes contractual relations between states that regulate international commerce, international trade, tort involving foreign elements, human rights, international crime such as human trafficking or illicit trade, and so on. Many of these instruments result in model laws that are ratified by member states and become a part of national law.
Although many of these international instruments are unenforceable internationally, they are generally obeyed. Unlike other legal systems, the international legal system is not a 'single, coherent practice or institution'. Rather, international law is a 'miscellaneous aggregate of rules, principles, ideals, procedures, policies, decisions, commands, recommendations, agreements, customs, precedents, and other normative elements.' As a result, it is difficult to conceptualize international law in terms of identifying and defining what international law is. Yet, at the same time, international law is decidedly an 'unambiguous and coherent conception of international order' organized around an 'international society' which is subject to a constitution 'regulated by a common body of non-instrumental laws'.
Within these parameters, states perceive themselves as a part of this international system or society and subject to shared concepts of international law. Specifically, customary international law and the UN Charter recognize the autonomy and independence of nation states. Therefore, while not specifically bound by a central legal authority, states are minded to obey international law because it is the same law that upholds their autonomy and independence. What occurs is a legal climate that is fortified by 'mutual respect'. While there is no guarantee that states will not use aggression, the international legal system establishes a legal order in which it is unlikely to occur or at least it is limited to a comfortable degree.
Moral Order
According to Hart, law plays a significant role in establishing and enforcing moral order. Hart gave two reasons. First, law is informed by morals. Secondly, morals are derived from law. Therefore, law and morals are intricately intertwined to the extent that law is a reflection of morals and law establishes moral standards. This is an important observation because law therefore functions to regulate the moral order.
Hall and Tunick explains the role of law in moral order. According to Hall and Tunick, many people would simply refuse to act in certain ways simply because the action would be immoral. Other people however, would require knowledge that a certain immoral act would result in some form of penalty. Laws are accompanied by punishment or 'damage awards, executed after a judicial determination according to procedures laid out by an authorative governing body'. Morals on the other hand, have no such enforcement regiment and instead, rely on 'individual conscience, social pressure, or perhaps the fear of God.' Law is necessary for establishing and maintaining the moral order as there are members of society who do not have the conscience nor the fear of God nor the fear of social pressure to observe and respect morals.
Micro Functions of the Law in Ordering Society
As previously noted, the micro functions of law in the ordering of society are derived from the macro functions and to this end the micro functions are more specific. Partington gives a number of examples of the micro functions of law and begins by explaining that some behaviours are unacceptable, but not always the subject of legal bans. For example, it is perfectly legal to get intoxicated after you have reached the age of 18. This may be unacceptable behaviour but not a crime. However, where an individual 18 years of age or older drives while intoxicated, the behaviour is not only unacceptable, but it is against the law. The law therefeore establishes boundaries around unacceptable behavior when it gets to a point where the life, limb and property of others are at risk of injury due to the unacceptable behaviour of another or others.
The criminal law therefore establishes boundaries and consequences for unacceptable behaviour and in doing so establishes and maintains order. However, as Partington cautions, criminal law is not the only branch of law that functions to establish and limit unacceptable behaviour. Civil law performs the same function. For instance, when a contract is contravened by one of the contractual parties, the aggrieved party may seek remedial action or damages from the court. Similarly, criminal law defines unacceptable behaviour and establishes punishments for that behaviour.
Conclusion
As this particular essay reveals there are a lot of factions in society that require order. Without order, there would be chaos or a purely uncivilized society. Law makes it possible to achieve order in society, the international arena, the economy, politics, and so on. Each of these factions of society are interconnected. When we look beyond the mere definition of each faction we can see a connection. For example, the economic order is an important place for testing morals and individual judgment. If we remove the law the regulations that call for the exchange of bargains, performance and consideration, we would be left with economic arrangements where the weak are exploited by the poor. This is not a mutual advantage as it benefits one person and harms another. We therefore risk ending up with a society in which opportunities for prosperity are for the stronger citizens to the complete detriment of the weaker citizen. This can lead to resentment, social unrest and tensions that can only end in revolution and other forms of disorder.
As it, laws that protect private property are looked upon as fair when everyone has an equal opportunity to gain access to private property and to become prosperous. If you remove the equal opportunity, you have citizens questioning why they should be loyal to a law that benefits some and harms others. The political order installs a system of justice and law and order that is fair and seeks to achieve a mutual advantage for citizens. A fair and impartial judiciary is a part of that political order. In other words, all factions are part and parcel of the same order and where they function together to achieve a mutual advantage, citizens are more likely to keep the peace. The laws protecting citizens from harm cannot be accepted if the laws deliberately harm them. The laws prescribe morals and reflect morals that are common to mankind and are not discriminatory on the basis of race, social status, gender, sexuality, religion and so on.
The Doctrine of Precedents/Stare Decisis
Introduction
The doctrine of precedents or stare decisis is predicated on the belief that it is a 'natural practice of the human mind, whether legal or non-legal to accept the same pattern in similar or analogous cases.' Stare decisis is a Latin term which translates to mean, 'to abide by,' or to 'adhere to, decided cases.' In practice this means that where a court establishes a standard and principle of law based on a specific set of facts, courts will follow this standard and principle in all cases with consistent facts and circumstances. This essay is divided into two main parts. The First part of this essay describes the doctrine of precedents and the send part examines its significance for the English legal system.
The Doctrine of Precedents
The doctrine of precedents operates to establish the binding nature of a past decision on a court. Within the English legal system, the precedent of a lower court is only binding on that court and inferior courts. A higher court can over-rule a precedent if it finds that it was unreasonably decided. In practice lower courts typically refer to precedents of higher courts. The binding element of the case is the 'ratio decidendi' or 'reason for deciding'.
The House of Lords laid out the principles for the doctrine of precedents in London Tramways Co. v London County Council. In this case the House of Lords expressed the view that when judgements are rendered at the highest level of the appellate process, those judgments should be final and binding on lower courts and the court rendering the judgment in the interest of certainty and consistency of the law. The circumstances in which the court could depart from the doctrine of precedents was established and included cases where a previous judge made a decision that was erroneous. The decision would be erroneous if it was decided on the basis of a statute that had been repealed or a misinterpretation of an existing rule of law or statute. In such a case, the court seized of a similar matter would not be bound by the previous decision founded on error.
Many years later the doctrine of precedents was revisited in Practice Statement (Judicial Precedent). In the Practice Statement, it was decided that the 'rigid adherence to the precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law.' Essentially, the standards for departure from the doctrine of stare decisis, set by the previous case of London Tramways, were expanded. In the Practice Statement, the court was permitted to depart from the doctrine of stare decisis if it appeared to be fair to do so and unfair to adhere to the doctrine.
Courts have shown that they are amenable to departure from the doctrine of stare decisis where it appears to be fair to do so. For example, the Caldwell recklessness test established in MPC v Caldwell was departed from in a later case. In MPC v Caldwell, an intoxicated hotel employee set fire to the hotel and caused significant damages. At his criminal trial for the fire, the Caldwell recklessness test which required judging the defendant's recklessness objectively. The objective recklessness test required asking whether or not an individual in the same circumstances as the defendant would have acted as the defendant did and if such a defendant could reasonably be expected to know the risk of harm and damages his behaviour would cause.
The Caldwell recklessness test however was found to be inappropriate and unfair in a case with similar facts and circumstances. In the case in question, the offenders were minors and could not have reasonably appreciated the risks that they were taking by deliberately setting a fire. Therefore, the court applied a subjective test and in doing so departed from the Caldwell recklessness test. The court felt that it was entirely unfair to hold minor children to the same standards that adults are held to when attempting to determine the reasonableness of their decisions and behaivours.
A few years after the Practice Statement, the House of Lords departed from a previous decision where it was held that owners and occupiers of realty did not owe trespassers a duty of care. The House of Lords departed from this rule in British Railways Board v Herrington. The case involved the electrocution of a six year old who had been playing and ended up on a railway line that had been corralled by a fence which had fallen part that the boy was able to gain access to the rail. In deciding to depart from the rule that trespassers were not entitled to a duty of care, Lord Pearson ruled that the previous rule:
...had been rendered obsolete by changes in physical and social conditions and has become an incumbrance impeding the proper development of the law. With the increase of the population and the larger proportion living in cities and towns and the extensive substitution of blocks of flats for rows of houses with gardens or backyards and quiet streets, there is less playing space for children and so a greater temptation to trespass. There is less supervision of children, so that they are more likely to trespass...There is considerably more need than there used to be for occupiers to take reasonable steps with a few to deterring persons especially children, from trespassing in places
A case of significant interest is the case of R v R in which the House of Lords dealt with the common law proposition that a man, through marital concepts could not be charged with rape since marriage automatically conferred upon the man the wife's consent. In R v R, the House of Lords ruled that:
The common law is, however, capable of evolving in the light of changing social, economic and cultural developments. Hale's proposition reflected the state of affairs in these respects at the time it was enunciated. Since then the status of women, and particularly of married women, has changed out of all recognition in various ways which are very familiar and upon which it is unnecessary to go into detail. Apart from property matters and the availability of matrimonial remedies, one of the most important changes is that marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband. Hale's proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and respective of the state of her health or how she happens to be feeling at the time. In modern times any reasonable person must regard that conception as quite unacceptable.
The obvious implications are that the doctrine of precedents or the stare decisis doctrine are favoured in the United Kingdom. At the same time, the House of Lords have shown that they will not blindly apply previous precedent. Since the passage of the Practice Statement, the House of Lords have been consistent in their resolve to not allow new conditions and circumstances to be decided on the basis of old precedents that no longer have relevance.
The Role of the Doctrine of Precedents in the English Legal System
The doctrine of precedent is especially important for creating consistency in the courts and in doing so fosters confidence in the integrity of the law. This consistency also comes with certainty of outcome and the ability to negotiate and settle cases outside of the court. This can reduce the litigation load for courts. With this certainty, litigants can predict outcomes and this can temper litigious behaviour.
Farber identified three broad reasons for the precedent process. First, precedents benefit all decision-makers, not only judges. Secondly, precedents are beneficial to the courts, and finally, precedents help to establish constitutional law. Specifically, decision-makers at any level save time by referencing previous decisions based on the same set of facts and circumstances. It is impractical to expect that each court trial will involve a debate over issues that have already been tried and tested. For example, in a constitutional case involving civil rights, it would be entirely impractical to argue points that have already been decided for years such as whether specific actions fall within the scope of the constitutional case before the court. Moreover, without precedents, courts would render inconsistent judgements and the outcome would be very unpredictable. This would result in too much uncertainty and therefore a lack of confidence in the judicial process.
Overall, the doctrine of precedents shapes the court system in a way that supports the constitution. It allows courts to proceed with significant efficiency. In addition to saving time among the judiciary, the doctrine of precedents no doubt motivates the judiciary to be innovative and evaluative in light of the fact that they may be creating a precedent. Precedents are important efficiency tools because judges vary in their philosophies and preferences and as such, precedents force judges into 'convergence' which weeds out diverse rulings on the same factual issues. Precedents are therefore valuable because they prevent 'frequent defections from a established precedent' which if allowed, would 'undermine the process of converging to efficiency'.
In discussions about precedents it has been debated whether judicial precedents make law or simply make declarations about what the law is. In many cases where there are no statutory basis for describing an offence, judges to make law and this is often referred to as common law. For example, the Office for National Statistics points out that the offence of homicide which covers murder and manslaughter are not defined by statutes and are therefore common law offences. Thus it is reasonable to presume that judges do make law and this law is established and circulated through the doctrine of precedents.
Based on the discussion in this essay, it can be concluded that judicial precedents play a significant role in the English legal system. First, judicial precedents operate to close gaps in the law. For example, a statute or a previous judgment may establish a rule of law in a commercial context. Such a rule of law may be the acceptance of documentary evidence defined in terms of hard copies. However, digital images may not have been contemplated at the time of legislation and judgement. A judge seized of a case may take that opportunity to classify digital documents as documentary evidence. This establishes a precedent which is in essence judge-made law. In addition to filling gaps in the law, the doctrine of precedents essentially codifies the common law and facilitates efficiency.
Conclusion
The doctrine of precedent is unique to common law systems and in particular the English legal system. The fact that it has been in force for hundreds of years speaks volumes for its effectiveness. Based on the discussion in the essay above, it is at least clear that the problems that the withdrawal of the doctrine of precedent would cause is the primary reason for keeping it around. The main concern is the lack of certainty, consistency and predictability. This would not only create a lot of confusion and chaos in the legal system, it would impact the confidence that the public generally have in the judiciary and their ability to identify and administer justice. There is a lot of concern that judges would fall into a practice of setting aside case after case so that the idea of common law would be a thing of the past. In addition, statutory interpretations that have become fortified by judicial decisions would constantly change. The law itself would become a state of disorder. While legislators can remedy this by implementing laws that codify law, judges will still have to make decisions and interpret statutes. The status quo is fair and it allows for judges to depart from a precedent if it is outdated or the circumstances and conditions have changed to such an extent that the rule of law contained in the judgement is inconsistent with the reality of today.
Statutory Interpretations
Introduction
Statutes are described as complex sources of law because legislators often frame them in very narrow terms or very broad terms. In order to prevent bias and individual philosophies interfering with objective judgments, judges in their declaratory roles abide by a set of methodologies for interpreting statutes. The judiciary uses rules of construction and rules of language to interpret statutes. The rules of construction are the main rules and include literal, golden mischief and purposive rules. These rules are discretionary in that judges are free to select which rule of construction is best suited to the statute at hand. This essay is divided into two main parts. The first part of this essay will discuss the rules of construction and the second part of this essay will discuss the rules of language.
Rules of Construction
The Literal Rule
In Sussex Peerage Case [1844] 11 CI& Fin 85, Tindal CJ explained that the literal rule should be used. Specifically, Tindal CJ stated that the:
...only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of Parliament which passed the act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver.
It is important to note, that the literal rule contemplates that it will be applicable where the intention of the legislator is clear and this is frequently not the case. However, judges will always look to the literal rule prior to attempting one of the other rules. Judges look at the statute and attempt to give the words contained in the statute its ordinary dictionary meaning.
In the case of Fisher v Bell [1961] 1 QB 394, a shop vendor exhibited a flick knife described as an ejector knife. Pursuant to Section 4 of the Restriction of Offensive Weapons Act 1959, it was an offence to sell or offer for sale a flick knife. The prosecution argued that the shop vendor offered a flick knife for sale contrary to Section 4 of the Restriction of Offensive Weapons Act 1959. The shop vendor's defence was that no such offer had been made. The Queen's Bench Divisional Court applied the literal meaning of the statute and ruled that the display of an item in a shop window with a price attached to it was not an offer for sale, but rather an invitation to treat and therefore no contravention of the 1959 Act took place. The court went on to note that there was no indication in the Statute that Parliament intended that the words offer for sale should mean anything beyond what it means in the law of contract.
The literal rule may lead to an unfair result. For example, under the Street Offences Act 1959, it was an offence for public solicitation. In Smith v Hughes [1960] 1 WLR 830, prostitutes solicited from private windows and balconies and were charged under the Street Offences Act 1959. If the literal rule had been used the prostitutes would have escaped successful prosecution and this would have been an unfair outcome because despite the private nature of their solicitation, they were still observable by the public.
The Golden Rule
The purpose of the golden rule is to ward off the unintended consequences of applying the literal rule. This was observed in Smith v Hughes where the literal rule was ignored in favor of the golden rule. The golden rule was therefore used in Smith v Hughes because the conduct complained of was exactly what the legislators intended to prevent through the passage of Street Offences Act 1959.
In general, the court can take a narrow or wider view of the golden rule in deciding that to use the literal rule in interpreting a statute will lead to an unsatisfactory result. The narrow view was used in R v Allen [1872] LR 1 CCR 367. In R v Allen, Section 57 of the Offences Against the Persons Act 1861 applied. Under Section 57 it was an offence to get married if the initial spouse was not dead since divorce was not possible at the time. There were two possible interpretations of the word marry as the defendant was charged under Section 578 of the 1861 Act. The court considered that the literal interpretation of the word marry would mean that the defendant had not married since he could not legally marry another while his spouse was still alive. The other possible meaning of the word marry was to participate in a marital ceremony and in order to give effect to the legislators' intention the court took the narrow view and found that participating in a marital ceremony was consistent with the intention of the act and the word meaning as used in the act.
The wider view was used in Re Sigsworth [1935] 1 Ch 98. On the facts of the case, the Administration of Justice Act 1925 provided for the devolution of an estate of an individual who died intestate so that the estate was inherited by the next-of-kin. In this case the mother was murdered by her son who was the next-of-kin. There was nothing in the 1925 Act to suggest that the murderer could not benefit from his crime. It was held that the use of the literal rule would produce an unjust result and therefore the golden rule was used to stretch the meaning of the intestacy rule in the 1925 Act.
The Mischief Rule
The mischief rule is used to give statutory provisions the meaning that was intended by the legislator. The court asks 'what was the mischief which Parliament was trying to address? And then seeks to resolve any ambiguity in the working to reflect the legislative intention.' One way to accomplish this is by searching the discussions held by Parliament in passing the original Bill. The mischief rule was applied in the Smith v Hughes (cited above) to avoid an ambiguity posed by the use of the literal rule.
In Royal College of Nursing v DHSS [1981] 2 WLR 279, the Abortion Act 1967 was tested using the mischief rule. The Abortion Act 1967 provided that it was a defence to an abortion if a medical practitioner could prove that the conditions were satisfactory. The Royal College of Nursing challenged the supposition that nurses could conduct abortions under the Act. It was held that the purpose of the Act of 1967 was to avoid basement variety abortions and as a result, nurses could carry out abortions.
The Purposive Rule
The purposive rule is used when the court interprets statutes while taking into account, the purpose of the statute. This is similar to the mischief rule. The court will look at the reason the statute was implemented and its purpose although it can mean that the ordinary meaning of words in the statute are lost. The purposive rule was intended to be used with membership into the European Union. Therefore, the purposive rule is often used with regards to European Union law. Section 2(4) of the European Communities Act 1972, judges are required to take the purposive approach and give effect to European Union law in the interpretation and application of domestic law.
Language Rules
Expressio unis est exclusion alterius: 'to say one thing is to exclude the others'. Where a list appears in a statute the court will generally conclude that if something is not on the list, it was the legislator's intention to exclude it. For example a statute penalizing individuals for owning a dangerous wild animal and provides a list of dangerous wild animals, it can be concluded that if an animal is not listed it is not a dangerous wild animal within the meaning of the statute.
Noscitur a sociis: 'known by the company it keeps.' This means that the statute or words in the statute can be interpreted by reference to its context.
Eiusdem generis: 'of the same type.' Here a list may appear but in words that are generalized which opens up the possibility of other items being included on the list. For example, the word 'other offensive weapons' in a statute leaves open the possibility of including a wide list of weapons.
In pari materia: 'upon the same matter or subject'. According to this phrase any ambiguity in a statute can be resolved by reference to other legislative provisions on the 'same subject matter' if the legislative provision does not refer to 'another statute'.
Conclusion
Statutory interpretation appears to be a complex process. As discussed, statutes are complex and are aimed at specific outcomes. Judges not only have to identify what the intended consequence is, but also how to interpret the statute to achieve that consequence and to avoid an untended consequence. A number of discretionary rules have been developed over time to help judges in interpreting statutes to ensure intended consequences and to avoid unintended consequences. These rules are discretionary and therefore permits the judiciary the flexibility they need to ensure that statutes achieve the ends of justice that they are intended to achieve.
Reflection Questions:
Question 1: What role does law play in the ordering of society?
Question 2: What is the doctrine of precedents and what role does it play in the English Legal System?
Question 3: What is the significance of statutory interpretation?
Question 1: What role does law play in the ordering of society?
As we look back on the role that law plays in the ordering of society we come to the realization that without law the economy, the society, political institutions, morality, and international order would be in chaos. Law either through specific statutory provisions prescribes civil and criminal parameters for behaviour and sanctions for failure to comply. By taking this approach, civil and criminal disobedience, although particularly high, would be significantly higher to a point where the ordering of society would be a mammoth task doomed for failure. Theory and case law on the role of law in the ordering of society reveals that law acts as the conscience and reasoning of the man who cannot be counted on to be a rational actor. The rational actor would think about the gains and disadvantages of acting in ways that bring harm to himself, and/or to others and would decide the harm was not worth the pay-off. A rational man would have a conscience about his or her behaviour and how it can be detrimental to an unwitting individual.
Unfortunately, humanity has a fair share of irrational human beings. Without law prescribing morals, acceptable behavior, unacceptable behaviour and punishment for failing to act accordingly, the concept of free enterprise and human rights would be a misnomer. Irrational actors would not only have their way with individual property, they would very likely have their way with the political ordering and this would no doubt flow over into the international order. There is no telling where this would end or how it would end. We may not have reached the level of civility that we have today. We may have already fought World War III.
With law currently ordering society we are already confronting crises in the economy, armed conflicts, crimes against humanity contrary to international conventions, domestic crime, international crime, domestic terrorism, international terrorism and so on. I am forced to reflect on the idea that if we are confronting so may levels of unlawfulness in society with enforceable laws, one can only imagine just how unlawful a world we would be occupying now.
Question 2: What is the doctrine of precedent and what role does it play in the English Legal System?
Upon reflection I would describe the doctrine of precedent as a system in which the judiciary keeps records of decisions that either create or clarify new and old laws respectively. The doctrine of precedent is a system through which the courts create and document judgments and those judgements are binding on lower courts. However, only the higher court can depart from a precedent and only if there are changes in the current times that render a previous judgment obsolete or the previous judgment was erroneous or was absurd.
Academics and practitioners alike have praised the doctrine of precedent on the grounds that it does save a lot of time and resources and like the role of law in society, it prevents a major meltdown of resources. If judges, lawyers and clients had to argue their cases from scratch without reference to anything other than the statutes available to them, the court would become inundated with dockets packed way beyond capacity and this would in an indirect way lead to the collapse of society. Because with the courts tied up with full dockets, there is no telling how many criminal offenders would be released on bail and therefore placed back in society where thy have to learn to co-exist with fellow humans again.
I have considered how a lack of precedents would also directly impact the legal profession and those who rely on it for a number of reasons other than having to report for jail. In the absence of precedents our main source of law would likely be codes of practice and codes in general. Therefore, a lack of knowledge about the case that one's boss or someone else may have against him/her, may force innocent people from the judgment seat or out of safe communities on the basis of uncertainties about the possible outcome of a case. This is because, precedents have been found to create consistency and certainty in the judicial system. The uncertainty and the inability to predict legal outcomes can either open the floodgates or drive potential litigants with a justified sense of grievance out of the courts. This is particularly problematic for Britain where statutes are scattered and voluminous.
In addition, the doctrine of precedent has served a moderating function among the judiciary. It recognizes that judges are predisposed to have diverse philosophies and preferences. If judges were not bound by judicial precedents they would each decide cases based on their own preferences and philosophies and this would render the common law unpredictable, and uncertain. The intended ordering of society that is associated with law, would be lost. Cases based on the same facts and circumstances would be decided differently. The idea of equality before the law would be meaningless. This could create disorder and social unrest in society.
Upon reflection, it can be argued that the doctrine of precedents plays a significant role in the ordering of society. It creates equality before the law and it serves to cultivate confidence in the judiciary and therefore, in the justice system. The doctrine of precedent does not only ensure that the courts are organized and efficient, but also establishes law and order in society by providing access to a predictable, certain and consistent system for the administration of justice in a fair and partial way.
Question 3: What is the significance of statutory interpretation?
Statutory interpretation serves a significant purpose in the administration of justice. Statutes are complex and quite often if interpreted literally can lead to an absurd or unfair and unjust result. Therefore, the judiciary uses tools of construction that allow them to interpret statutes to ensure an outcome that is consistent with the intended consequence of the statute. For example, if a statute intends to prevent bigamy and further intends to punish those who commit bigamy and in doing so criminalizes marriage to two or more persons, the word marriage cannot be given its literal meaning. This is because upon marrying the first time, all subsequent marriages are null and void. If the statute took on the literal meaning of the word marriage, everyone charged with bigamy would be acquitted because they were not literally married to two or more individuals. The unintended consequence would be, a statute that is inoperable and unenforceable.
The judiciary recognizes these unintended consequences and interpret statutes to ensure that these unintended consequences do not occur. This ensures that law and order are maintained so that the mischief that the legislators are addressing are addressed adequately. Judges are also keenly aware that legislators cannot always contemplate all of the exigencies that might occur in the administration of justice. Therefore, the judiciary will use tools such as the mischief rule, the purposive rule, the golden rule and the literal rule to ensure that justice is accomplished appropriately.
When I reflect on statutory interpretation I cannot help but come to the conclusion that the judiciary plays a part in the making of law. While Parliament enacts the law, the judiciary interprets it and in doing so, declare exactly what the statute regulates and how it regulates. This together with the doctrine of precedent places the judiciary in a unique position to not only make law, but to fill gaps left by Parliament for the more efficient ordering of society.
Conclusion
Looking back at the role of law in societal ordering, the doctrine of precedent and statutory interpretation, it is reasonable to conclude that each of these factions of the English legal system combine to ensure the macro functioning of the law for societal order. Indirect ordering takes place. The legislators, very well aware that the judiciary has the last say with regards to statutes and will refuse to use the literal rule when statues are ambiguous and can therefore result in inconsistent and absurd outcomes, legislators will do their best to safeguard against enacting statutes than can significantly altered by the court. A system of checks and balances therefore takes place. This system of checks and balances constrains the power of the legislators in that they may not enact laws that are unconstitutional or will have an unfair, unjust and absurd outcome. If they do enact those kinds of laws, the judiciary will interpret those laws to have a fair and just outcome.
Upon reflecting on the material covered in this portfolio, it can be concluded that the judiciary plays the most significant role in the creation and maintenance of law and order inn society. Although legislators are elected officials and are charged with the responsibility of debating and enacting statutes, the judiciary has the final say in how the law is interpreted and applied. Thus when we look at the theories of Austin, Hart, and Dworkin, the two arguments advanced in that judges do not create law and that they do create law, both arguments are true. The legislators create law and the judiciary has the final say as in it is the judiciary that interprets and enforces the law. Without the judiciary, the legislators' jobs would be entirely futile as they would make laws that would be unenforceable, unless they created a police state. If that were the case, law and order would not be achieved. Law and order would be forced.
