Do Judges Make Law Through Their Statutory Interpretation Role?

This report discusses the role of judges in interpreting statutes and implementing laws to give them true meaning. It analyzes the rules of interpretation of statutes and how judges use them to make effective decisions in legal matters. The report also discusses the development of judge-made law in the UK legal system.

Do judges make law
through there
statutory
interpretation role

Table of Contents
INTRODUCTION............................................................................................................................3
MAIN BODY ..................................................................................................................................3
CONCLUSION ...............................................................................................................................7
BIBLIOGRAPHY............................................................................................................................8

INTRODUCTION
Judiciary play significant role in protecting the law and safeguards the right of an
individual. It main aim is to regulate and govern the activities within the society. Judge has
greater contribution in interpreting the statutes and applies the legislation to maintain the safety
and security of its citizens. The UK legal system is based on various sources of law which
includes Convention, agreement, statutes, judge made laws etc. The judge made is an
independent source of law that helps to make effective decision in an legal matters. The
common law system of UK is completely depend on judge made law and has developed over
time. Judges find out the actual meaning of the statutes as the definition given by the legislative
body1. They are responsible to interpret ate the words and the language of words to create legal
rules. This report will analyse the rules of interpretation of statutes and role of judges in
implementing those laws to give them true meaning.
MAIN BODY
The English legal system is based on the common law and has uncodified legislation.
Over time, the judge starts interpreting the law to give true meaning to the legal document. The
primary source of law has been developed by the judges through precedents. These precedent s
are usually followed by the inferior court to make judgement. Earlier, when there is no Act or
Parliament then the judge was applied their own mind and thinking to decide the serious matters.
The law of England and Wales has been evolved over many years which leads to development
and creation of various laws. Judges are the important part of UK legal system as they identifies
the legal intention and true sense of words while interpreting the laws. They are not only decide
the cases according o the available laws but also influence the laws through its applicability in
various cases. Statutes are introduced by the sovereign and Parliament which involves complex
procedure and ambiguity due to its area of concern. However, the statutes are generally tend to
ambiguous and vague. Now, judges make it more effective by using particular meaning and
word , comes to judgement to find the true meaning of the words. Thus, rule of statutory
interpretation was developed to identify the true spirit of the words used in the statue. Sometime
1 JEON S, 'The Constitutional Court’S Review On Judge-Made Law' (2021) 27 Korean
Constitutional Law Association

the words used in statute have dual meaning which is quite complicated for judge to
interpretative the words. The literal rule of interpretation helped them to avoid absurd and
illogical meaning of statutes. The main reason for introducing the approaches of interpretation is
to deliver fair, just and reasonable system in UK. Law made by the judges is based upon their
judgement and do not take shape within few days , the course of its forming is slow and cautious.
Major reasons for applying rule of interpretation are two- Language of legislature and Intention
of the legislature. Ascertainment of above given two things is necessary for judges. Interpretation
of statutes is based on recognised rules and is matter of effective working of courts. This also
includes rendition of some basic words too as are set out in the Interpretation Act 1978.
Following is the brief detailing of the rules of Interpretation2:
Literal rule: In this rule, the words are given their original and natural meaning and makes sense
and judges play significant role in interpenetrating those statutes and legislative frame those
statutes. The main focus is on the literal or natural meaning of the word and it can influence the
process of law making in a very positive way. The judges interpret the law and try to bring out a
intellectual and clear perspective with element of law in order to solve out the dispute of the
parties. There should be no change in the meaning of word and it should remain as it is for
interpretation of its natural and literal meaning. The meaning of the word will be according to the
statutory language within the interpretation of law. If there is use of any other technical word
then the original meaning of it will be used. There will be no change in the original meaning and
no modification will be done to the natural meaning.
This rule was applied in case of Fisher v. Bell (1960), in which it was held that it is an offence to
give or offer particular weapons for sale as stated under the Offensive weapons Act 1959. James
Bell, the shopkeeper of Bristol shop, ha displayed such type of offensive weapon as knife in the
window of his shop3.
Golden rule: The golden rule is used when there is any absurdity or inconsistency from literal
interpretation of statute. In case of Berriman 1946, implementation of literal rule of
interpretation was considered unjust and harsh which led to implementation of golden rule. This
rule will recognise Wide and narrow both applications. Court has to choose between available
possible meanings of the text when narrow approach is kept, and there can be widely no use of
2 jain N, 'Approaches To Interpretation Of Statues' [2021] SSRN Electronic Journal
3 Sanson M, Statutory Interpretation(OUPANZ 2019)

no other meanings. On the other side if the approach is wide,then the court may intervene in
providing other meaning which can provide a clearer perspective. In Alder v. George case of
1964, Court used golden rule of interpretation while interpreting the words 'in the vicinity' of
area prohibited and held defendant guilty. In case of Re Sigsworth in 1935, Court applied
golden rule with wider approach by addressing issue of succession by one who killed next kin.
Mischief rule: Where consideration of intention of parliament do not do justice with words used
in statutes, then at such times, judges can apply their own discretion in interpretation of statutes
and give meaning to words suffering from ambiguity as per their understanding which may be
different from what was intended by the parliament. The unforeseen loopholes or any
ambiguities may prevent judges from honouring intention of parliament. In 1584, Heydon's
case, the rule originated for implementation of meanings attached to purpose of legislation.
Major element of this rule is that it works on curing mischief that is associated with working.
Matter which are to be considered with applications of rules formed in this case is common law
as existed before matter came into consideration with mischief as occurred in case for which Act
was enacted by parliament. In case of Smith v. Huges (1960) where solicitation by prostitutes
was under consideration on streets of London. Streets Offences Act, 1959 was enacted to
prevent the solicitation in streets leading to solicitation by them from balconies and windows.
Court applied the mischief rule while interpreting said Act4.
Judges have discretised in choosing which rule is to be applied by them. Courts can use external
and internal aids for interpretation of statutes. Law made by judges are those which they give in
form of precedents. These are judgements from cases which are given after interpretation of
statutes. This way it can be inferred that judges make laws through interpretation of statutes. Not
only by interpretation but also by giving judgements of common law they make laws. Laws
which are to be interpreted by judges require keen consideration of multiple factors. There may
be precedents already in place as situation may require them to consider new set of facts for
which they are to improve, alter or abolish any existing law made by them other by parliament
following procedures for the same. Laws which are available for interpretation and
implementation may be having serious issues with them which comes into light when any case
4 Brown K, 'Gender, Governance, And Countering Violent Extremism (CVE) In The UK'
[2019] International Journal of Law, Crime and Justice

relating to the said law is taken to court's consideration. Thus Hart emphasises on need of
careful consideration of statutes by judges while interpreting them using the rules of
interpretation5.
Yet, as per Dworkin, standards are fundamental components in choosing these kinds of hard
cases. He looks to contend that in all cases a construction of legitimate standards remains behind
and illuminates the pertinent guidelines. The importance of standards is set from the rules which
are provided by law. Judges, through the principles of point of reference, just find and proclaim
the current regulation and never make 'new' regulation. An adjudicator pursues a choice, 'not as
indicated by his own confidential judgment, but rather as per the known regulations and customs
of the land; not designated to articulate another regulation, however to keep up with and
elucidate the former one'. He is against the adjudicator made regulation basically on account of
two protests. It further specifies that chosen delegates who are mindful to individuals ought to
oversee a local area and when judges make regulation it will be an infringement on official
power. Secondly, the appointed authority makes new regulation and applies it retroactively for
the situation before him, then at that point, the terrible party will be rebuffed, not on the grounds
that he disregarded some obligation he had, yet rather another obligation made after the occasion.
Countering Dworkin's most memorable contention, Hart says that judge's power is dependent
upon numerous requirements limiting his decision and judge's power are practised exclusively to
discard specific moment cases; he can't utilize these to present huge scope changes or new codes.
Despite the fact that on the off chance that they make new regulation, it is as per standards or
supporting, reasons perceived as of now have a balance in the current regulation. The actual core
of the "helpful understanding" which is so noticeable component of Dworkin's hypothesis of
settlement6.
Dworkin likewise discusses the carefulness however for him judge's decisions are inside the
limitations of judgment, which he called as frail tact. Dworkin doesn't deny the requirement for
powerless caution yet he keeps the presence from getting solid legal watchfulness. Judges don't
make regulation on the grounds that the current regulation gives every one of the assets to their
choices. An appointed authority doesn't choose a case in a legitimate vacuum however based on
5 Popkin W, The Judicial Role(2017)
6 Observations Of A Criminal Justice Professor From Inside The Jury Room' [2018] Journal of
Criminal Justice and Law

existing guidelines, which express, and, simultaneously, are educated by, hidden lawful
standards. The undertaking of the appointed authority confronted with a hard case is, hence, to
comprehend what choice is expected by the entire doctrinal construction of existing regulation.
The second criticism of Dworkin, objections are considered to be irrelevant as there may be laws
will are left unregulated and cannot be taken into account by judges for supporting their
judgements. Proper state of any law is also not presented for justification in system.
It can be clearly observed that there exists an area of law which is to be clarified for
implementation and is not determinate enough for courts to have direct recourse to them in
giving judgements on crucial points of consideration in any case before them. Such area requires
analysation of these laws and applying rules of statute interpretation over them. According to
report of Hart, jurisprudence in the sphere of open character is a restrained reasoning of actions
of court. The law may be simple and understandable for all but the court's decision may be
reflective of other predictions. Yet crucial here is to know that court may be working on
predictive results or judgements but the law it considers should be determinate enough or if it is
not so , then first and foremost the court will determine the actual status and standards of law7.
CONCLUSION
From this above report, it has bee concluded that interpretation is to be done by parliament
which is sole law making body in United Kingdom. Work of judges is to implement already
made statutes in giving decisions and supporting their judgements. When there is any ambiguity
or vagueness in the situation as to the words or context of any law made by the parliament, then
judges interpret such laws by using various rules of interpretation. Laws which are formed by
judges are in form of precedents and with interpretation too they give certain guidelines or
decisions which are taken by other courts or authorities as law. In this sense, it can be said judges
make laws through the procedure of interpretation of statutes.
7 Constitution-Making Process: The Case Of Nepal' [2019] SSRN Electronic Journal

BIBLIOGRAPHY
Books
Sanson M, Statutory Interpretation(OUPANZ 2019)
Popkin W, The Judicial Role(2017)
Journals
JEON S, 'The Constitutional Court’S Review On Judge-Made Law' (2021) 27 Korean
Constitutional Law Association
Zhu G, and Kouroutakis A, 'The Role Of The Judiciary And The Supreme Court In The
Constitution-Making Process: The Case Of Nepal' [2019] SSRN Electronic Journal
jain N, 'Approaches To Interpretation Of Statues' [2021] SSRN Electronic Journal
Martenet V, 'Judicial Deference To Administrative Interpretation Of Statutes From A
Comparative Perspective' [2020] SSRN Electronic Journal
University) J, 'INVITED ESSAY: Jury Decision Making: Is The Devil In The Details?
Observations Of A Criminal Justice Professor From Inside The Jury Room' [2018] Journal of
Criminal Justice and Law
Antoshkina V, 'Interpretation Features In The System Of Private Law' [2020] Legal position
Brown K, 'Gender, Governance, And Countering Violent Extremism (CVE) In The UK' [2019]
International Journal of Law, Crime and Justice
Case Citations
Smith v. Huges (1960)
Alder v. George
Fisher v. Bell (1960),Berriman 1946,