Judicial creativity essay

judicial creativity essay

is highlighted here, as ultimately it is in their hands what the result will. Contra to the position of natural law is that carnegie mellon essay college confidential of legal positivism which states that morality and law are distinct and that law does not exist outside of human enactment. This wouldnt be a problem if parliament was more active in reforming the law, but parliament has been very reluctant to change the law even though there is great need for the law to be reformed. This includes departures from precedent or teleological interpretation of statute. ARE, aBLE, tO, develop, tHE, lAW, through. And so it may be necessary for a judge to interpret a statute so it can be applied to those unforeseen situations. There are four main ways in which courts can avoid precedent: The HoL use of the practice statement. 'The rules of judicial precedent and statutory interpretation only appear to impose constraints on what judges may. They may employ a meticulous examination of the language used' (a literal application of law) or alternately pay more attention to the apparent object' of the source.

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An example of this is in RvR (marital rape) where the HoL followed a decision made by the Court of Appeal and effectively created a new crime deciding that rape could be committed in marriage. Although the rules of both are clear cut, there is room for judicial creativity that can achieve the aims of both while also reaching justice. The criminal division as well as using the exceptions from Youngs case can also refuse to follow a past decision of its own if the law has been misapplied or misunderstood. There are advantages and disadvantages of this. Judicial precedent refers to judge made, or common, law. However, the modern doctrine of precedence can be seen to have departed considerably from this position, especially with the advent of the Practice Settlement essay on ambition in macbeth 1966, which contra to London tramways, allowed Lords to depart from its previous decisions. Constitutional tools such as the Human Rights Act have availed judges with an opportunity to approach legal problems more creatively but for the most part, as stated by Lord Diplock, When the meaning of the statutory words is plain and unambiguous' judges should not forbear.

A court may come across an original case that highlights a point of law that has not been discussed before. The court of Appeal is normally bound by its own previous decisions.