The English Courts Are Inferior to the Parliament as far as Law-Making Is Concerned - Coursework Example

According to Gall (1983, as cited in Perell 1987 The operation of the doctrine of stare decisis is best explained by reference to the English translation of the Latin phrase. "Stare decisis" literally translates as "to stand by decided matters". The phrase "stare decisis" is itself an abbreviation of the Latin phrase "stare decisis et non quieta movere" which translates as "to stand by decisions and not to disturb settled matters". It follows then that when something has been decided in the past, similar cases should be tried accordingly, and the courts are obliged as such. This concept differentiates the English Common Law system from Civil Law, where every case is tried based on a judge’s or jury’s interpretation of law at a particular time, regardless of the outcome of similar cases in the past. This begs one big question: Given that the judiciary has the task of interpreting laws and giving judgments when two or more parties do conflict; add to the fact that it is supposed to play a role that is separate from the legislature, has stare decisis effectively made English courts the rivals of Parliament in making laws? To be able to do that, let us examine the current rules of court in Britain. There are different rules of precedent for each court. There are cited as follows: (“Rules of precedent”, n.d.) House of Lords In 1966, the Lord Chancellor has issued a statement which sheds considerable light on the issue of precedent, and it is worth reproducing below: Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law….This announcement is not intended to affect the use of precedent elsewhere than in this House. Many people believe that the House of Lords is bound by the rules it set, but his statement has implied that the House of Lords is not really bound by its own decisions, contrary to what many people believe. Nevertheless, its decisions bind lower courts. Court of Appeal – Civil Division Decisions made in this court binds the Civil Division itself, as well as inferior courts. It is however bound by the House of Lords. Young v. Bristol Aeroplane Co. Ltd (1944) gave the following important criteria: If there are two plausible but conflicting cases in this Court, it may arbitrarily choose one and overrule the other. However, any decision of the Court of Appeal which has been overruled by the House of Lords must be treated as overruled by the Court of Appeal itself. The Court of Appeal is not bound the follow its own decisions when it can be proved that it arrived at an error. High Court Any decision of the High Court is binding to lower courts, but it is not binding to itself. For any case of conflicting decisions, it is referred either to the Court of Appeal. County Court The higher courts bind the county courts. However, any decision arrived at this level make no new precedents. In the ideal world, judges are supposed to try cases by implementing laws crafted by legislators. However, real-life cases are not that clear-cut. In different situations, provisions of laws may be vague, and may not be applicable, or simply subject to different interpretation. Hence, there must be ways by which this could be resolved. For vague provisions, the rules of statutory interpretation, which would be discussed below, come into play. Binding precedent plays an important role in the English system by simplifying the work of judges, handling similar cases in the future. Who would want to go through all the trouble of applying difficult and sometimes conflicting rules of statutory interpretation repeatedly? Now, once these rules are used, decisions are placed at par with acts of Parliament, when future cases arise with the same or similar content. With that in mind, the courts effectively have become virtual legislators. But do judges really have a powerful law-making function? It appears they have, but this should not be deemed as law-making. Judges are limited to interpreting existing laws in light of previous cases and accepted principles of statutory interpretation. This should not be construed that judges are themselves legislators, since they cannot initiate their own legislation that Parliament would deliberate. Notice also that the operative word in the question is “powerful.” In light of what the judiciary in the United States, especially the US Supreme Court, it would be too strong a word to describe English courts as a powerful legislative body. The US Judiciary can declare any law unconstitutional if clearly, it is not; or if it does not fit the way judges’ way of interpreting the US Constitution and a bunch of other laws. It is not plausible to think that English courts are really that powerful. For one, English Courts trying to act like the US Supreme court cannot declare any Act of Parliament as unconstitutional. The United Kingdom does not have a written constitution like that of the United States. For practical purposes, any decision of Parliament is effectively an addition to or an amendment to its “constitution.” In conclusion, the English Courts are inferior to the Parliament as far as law-making is concerned. They are really not powerful in the sense that it rivals Parliament in the law-making function. They are only powerful up to the extent that future decisions of court judges hinge upon what the courts of today decide. Hence, if a small number will deny the “powerful law-making function” of judges; this is only a matter of perception and not of fact. Statutory interpretation is simply the set of rules by which previous court decisions as well as legislations could consistently and reasonably be interpreted. It is usually practiced whenever previous cases or a particular law in itself can be interpreted in various ways, and such could pose problems. Furthermore, the following assumptions must be kept in mind when applying statutory interpretation. Non-compliance will pose unnecessary conflicts: (“Statutory Interpretation,” n.d.) They are presumed not to bind the Crown. This means that the King or Queen is practically above the law. The monarchy retains sovereignty, but the courts are left with the duty of interpreting the law by which to guide the ordinary people. They do not operate retrospectively in respect to substantive law (as opposed to procedural law). In other words, such laws will not accommodate new interpretations with respect to existing interpretations. This could be seen as practically legislation that the courts cannot repeal, and Parliament has the sole power to say that it is retroactive. They do not interfere with legal rights already vested; thus, any rights authorized by Parliament shall not be infringed by any act or principle of statutory interpretation. In effect, Parliament is more powerful than all English Courts combined. They do not oust the jurisdiction of the courts. Thus, no interpretation should be made that undermines the jurisdiction of any particular court. For example, a county court cannot make any decisions that will cause the Court of Appeal to lose jurisdiction over a particular case or issue. They do not detract from constitutional law or international law. Essentially, once the United Kingdom has agreed to International Treaties and other sources of International Law, no further interpretation must be made that will undermine such treaties. These give rise to the following specific rules: Noscitur a sociis is a rule that asserts that the proper meaning and interpretation of a term or statement is based and dependent upon the context of the same. There are several instances that a vague and ambiguous term or statement may cause misinterpretations. Thus, the appeal to context will help solve the difficulties of different possible interpretations (“Noscitur a sociis,” n.d.). Ejusdem generis follows from the rule above on the appeal to context. Whenever a general word or lists of general words appear, other words preceding and following restricts the sense by which such can be interpreted (“Ejusdem generis,” n.d.) Expressio unius is the short form of expressio unius est exclusio alterius. This simply means that we are supposed to take lists of specific words as exhaustive, meaning nothing should be added to it. This rule attempts to make statutes and contracts less ambiguous. (“Expressio unius,” n.d.) There are other rules of statutory interpretation but the ones enumerated above specifically apply to British courts, and for our purposes these would suffice. I do not think that there is a hierarchy of importance in the rules for statutory interpretation. This poses potential problems since different judges will rank one particular rule over the other. Each judge simply picks up the rule which will work. Furthermore, it is quite problematic when possible contradictions surface in applying all rules. Which rule should be prioritised? It is not really clear, but the judge just manages to get away with it. In the absence of any rule by which judges ought to use in order to equitably practice statutory interpretation, Corbin (2007) has noted that statutory interpretation is not and cannot be “a mechanical process.” Judges are simply left to act in their discretion as to what a particular piece of legislation means; otherwise, this could have long been left to computers. Furthermore, the difficulties that courts and judges may face in the exercise of such discretion depend on several factors such as the mastery of linguistics, political science, and political theory. Judges cannot always question the original legislators who sponsored a law for clarification. On some occasions, the intent of a particular legislation may not be apparent, and the judges are forces to come up with the possible intent through the application of the rules of statutory interpretation, even with the risk of having a decision where the original intent is violated. This can be readily seen when you consider the problems of relying on the text of the law alone to make any judicial decisions. If a particular case or legislation was promulgated in the previous century or older, some words may become vague, and interpretation is biased according to the vocabulary of the judge. Worse, this could also happen within a span of 20 years. Words get outdate via non-use, and difficulties in comprehension naturally arise. When this happens, plain meaning interpretation might be discarded since following it might be absurd. As far as knowledge in political science and political theory is concerned, these subjects help the judge in putting himself into the legislators’ shoes. This may prove critical. Although the judges cannot personally interview dead legislators, they could put them in their shoes. This could prove critical when judges attempt to extrapolate the possible intent of the authors of a piece of legislation. Furthermore, there should be a limit to the amount of discretion which a judge exercises. Perhaps, another person or body ought to review a judge’s exercise of discretion in doing statutory interpretation. One cannot just let someone abuse discretion in the name of clarifying legislation. Further difficulties could be reduced with this approach. In conclusion, when the above factors are overcome, then difficulties in statutory interpretation could be overcome. They arise because of no predetermined way of using one principle or a combination of statutory principles. As long as no hierarchy of principles could be established, such difficulties will continue to persist and plague the English legal system. Nevertheless, instead of waiting for such to occur, judges could do away with the difficulties by following the suggestions above. References Corbin, L. (2007). The Role of statutory interpretation in law-making through the courts. Legaldate, 19(2), 1-3. Retrieved March 26, 2009, from MasterFILE Premier database. Ejusdem generis. (n.d.). Retrieved 26 March 2009, from http://www.gillhams.com/dictionary/341.cfm Expressio unius. (n.d.). Retrieved 26 March 2009, from http://www.gillhams.com/dictionary/459.cfm Gall, G. (1983) The Canadian Legal System. Toronto: Carswell Legal Publications. Noscitur a sociis. (n.d.). Retrieved 26 March 2009, from http://www.gillhams.com/dictionary/463.cfm Perell, P. (1987). Stare decisis and techniques of legal reasoning and legal argument. Retrieved 26 March 2009, from http://legalresearch.org/docs/perell.html Ross, S. (2007). Statutory interpretation as a parasitic endeavour. San Diego Law Review, 44(4), 1027-1051. Retrieved March 26, 2009, from Business Source Complete database. Rules of precedent. (n.d.). Retrieved 26 March 2009, from http://legal-directory.net/english- law/rules-of-precedent-civil-courts.htm Statutory Interpretation. (n.d.). Retrieved 26 March 2009, from http://www.gillhams.com/dictionary/332.cfm Read More