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English Legal Principles of Professional Conduct Assignment Sample

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English Legal Principles of Professional Conduct Assignment Sample

Introduction

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Judicial precedents are said to be binding precedents as they are taken into consideration when the court takes judgment and decision on cases having the same circumstance and related facts. In other words, the courts are required to follow earlier judgments even if they are outdated in cases that have the same or related circumstances. But it has been analysed based on arguments and statements that there are supporters as well as criticisms of judicial precedents and binding precedents. The presented essay is drafted on the statement that whether judicial precedents and binding precedents are rigid and can there be amendments done by the judges under statutory interpretation as per the changing need of the society and rights of people. The essay also focuses on judge-made laws that are case laws and statutory interpretation of the laws which are considered as primary sources of law. It can be further stated that the supporters of judicial precedents have opined that these case laws that create certainty in law are required to be followed in the interest of justice. But the criticisms of these precedents state that judicial precedents are an undesirable practice that creates rigidity in the system of law and also takes the freedom of the judge in giving judgment depending on circumstances and changing needs. Further, the rigidity in judicial precedents also forces the judges to follow the outdated law even if there are chances of modification in the interest of justice.

Judicial Precedents

Definition and meaning

The basis of judicial precedent has been found in the Latin term Stare Decisis which means "Let the decision stand' and this also forms the foundation of the English legal system as the major source of law in England is the judge-made laws. But the application of stare decisis is within a hierarchical court structure and the lower courts are bound by the order of the apex court. Once a judgment has been taken by the apex court it shall be followed by the lower courts in the cases having similar material facts. The leading judgment which was passed to determine the liability of manufacturers in products was in the case of Donoghue v. Stevenson [1932]. As already known, in this case, there were remains of a dead snail in ginger beer which are consumed by Mrs Donoghue and she fell severely ill. Hence, the judgment was passed by Lord Atkin to determine the liability of manufacturers. Due to the application of stare decisis and judicial precedent to be followed, a similar judgment was rendered in the case of Grant v. Australian Knitting Mills where the court determined the liability of the manufacturer if the manufacturer could foresee the risk of injury to the consumers.

The doctrine of judicial precedent can further be seen under the concepts of ratio decidendi and obiter dicta. Both these terms have different meanings and definitions. Ratio decidendi is the principal foundation of the reasons and findings in any judgment which the judge needs o to clarify while rendering his judgment. Whereas, obiter dicta are mere recommendations and observations. These terms are important in applying judicial precedent as ratio decidendi alone is binding over the lower court as they are rigid judgment passed but observations under obiter dicta are not binding on the lower courts. Hence, obiter dicta are flexible statements and judgments which could be modified but the presiding judge as per changing needs. 

Supporters and criticisms of judicial precedents

As already stated, there are both the supporter of judicial precedents and criticisms of this notion. But discussing the views in support of binding judgments, it can be stated that the supporters have based their support for judicial precedent on the fact that these precedents create certainty in the law. Further, they have also stated that judicial precedents create detailed and minute rules for practising law. They have also stated that rigidity in judicial precedents saves the time in rendering judgment as it creates a clear vision before the judge to follow what is required to be followed.

The above-mentioned basis of the supporters and statements of reasons have created the view that quick dismissal of judicial precedents and regarding them as undesirable shall be inaccurate and it shall lead to further rigidity in common law and ultimately to injustice. Hence, the quick judgment regarding the rigidity of judicial precedents is regarded to be imprecise by the supporters of precedents. The supporters have further argued that binding precedents are taken as fundamentals in the common law and English legal system. Where the material facts of the cases are similar, the judges are required to follow ratio decidendi which is the principal foundation and reason of the given judgment.

But apart from supporters, there are criticisms also of the binding nature of judgments which takes the freedom of the judges to deliver the judgment as per the requirement in the case. The criticisms of binding precedents have stated that they create huge complexity and also adds volume to case law. Moreover, the application of binding precedents has contributed to rigidity in the English legal system. Further, it has also been argued by some scholars that binding precedents have created illogical differences in case laws. Further, it has been stated that there is no predictability in judicial precedents. The following of the old traditional and outdated judgment also affects the growth of the legal system and the system grows in an unsystematic manner without pace. Further, these precedents have also confined the judges and have tied their hands in considering the wider policy effect of their decisions. Further, the judicial is also applied retrospectively and hence, creating more complexion in the legal system. It has been thus, criticised by scholars that binding precedents and their application is undesirable.

Statutory interpretation

Definition and meaning

The meaning of statutory interpretation is the taking out the meaning of the law drafted by the legislative body and this interpretation is done by the judiciary of the country. In other words, it is the job of the courts to say what is the meaning of the drafted law hence, the task of the judge is not to make the law but to interpret it in particular cases. Statutory interpretation is used mainly to see the intention of the drafting body that is the legislature in making the laws and the judiciary takes out this intention in rendering their judgment in every case. Hence, the judicial body interprets the law to analyse the intention of the legislature in drafting the laws. 

Rules of statutory interpretation with case authority

There are different rules applied in the interpretation of the statute and each judgment, the judges apply these rules differently but the basic meaning in the application remains the same. As discussed above, the purpose of statutory interpretation is to bring into light the meaning and intention behind the enacted legislation but this approach of the judiciary is not absolute and it has limitations. The following are the rules of statutory interpretation done by the courts:

  1. Literal rule: The literal rule is applied by the court to the legislation in the sense that the ordinary and natural meaning of the word is taken into consideration. The court applies this rule in simple interpretation to know the intention and will of the legislative body. Reference of the case Fisher v. Bell [1960], can be taken in which Lord Parker CJ interpreted section 1 of the Offensive Weapons Act 1959 and held that if a window displays a knife with the price written on it, the words that it is not for sale by the defendant did not make any sense. On literally interpreting the statute, the judge held that as per the ordinary law of contract the displaying of articles with the price is meant to sell them and not for any other purpose. 

The relevancy of the literal rule in providing flexibility to the interpretation of the statutes is clear as the literal rule is simple in its application and it provides clear definition and meaning to the word which the court is considering. Discussing the rigidity of interpretation, the literal rule is not rigid as it provides flexibility to the judge in interpretation and case, there is no point in applying the literal rule, the judges have other options as well for interpretation. 

  1. Golden rule: Under the golden rule when the court finds an ambiguous or absurd meaning while interpreting the statute, the court applies the golden rule and takes out the meaning of the statute as a whole. Reference of the case Adler v. George [1964] can be taken which is considered as a classic example of this rule. Under this case the provision under section 3 of the Official Secrets Act 1920 was in question. Under this provision, it was an offence to obstruct any member of security or guard in the vicinity of the air force station and if any person was found to obstruct, he shall be guilty of a misdemeanour. The defendant, in this case, relied on the general meaning of vicinity but the judge interpreted the statute as a whole and not merely as a particular provision.

This rule is said to have major relevancy in the statutory interpretation as this rule provides a chance to interpret when the literal rule is not applying. In some instances, the literal meaning of words and phrases are ambiguous and vague and hence, in such instances, the court applies the golden rule. This rule is also partially flexible and partially rigid because this rule provides for the flexibility of alternative options but when the rule is applied it is applied rigidly as the judge is bound by the overall meaning and purpose of the statute in question.

  1. Mischief rule: This rule was laid down in Heydon’s case in the 16th century. This rule requires the judge to take into consideration three factors which are as follows:

    1. The meaning of the law before the passing of the statute

    2. The mistake and problem which the statute intends to clear

    3. The remedy and correction which the legislative body is trying to provide

Reference of the case Smith v. Hughes [1960] can be taken into consideration as an example, where the police officer presented information against Marie Theresa Smith and Christine Tolan alleging that they were out on street for prostitution which was against section 1(1) of the Street Offences Act, 1959. In this case, Lord Parker CJ stated that the mischief in the previous legislation was the aim of the legislative body and also to correct it. The magistrate also opined that on considering the material facts of the case, the legislature intended to give free movement to the passers-by who were crossing the street without being molested and solicited. But the actions of the prostitutes through their window, though the window was not a part of the street, was an act of soliciting the person crossing the street and hence, the judge dismissed the appeal of the defendants.

The relevance of this rule with rigidity in the interpretation of case laws can be seen when the traditional judgment is outdated and the court sees the reason why the legislature has enacted the new law. This rule is also flexible as it depends on the three factors while its application. The judge is free to take into consideration the traditional laws and also the mistake in it which the legislative body intends to correct. 

Conclusion

 To conclude it can be stated that, judicial precedents are rigid judge-made laws that bound the judges to abide by the judgment even if it does not suit the present circumstance and facts of the case. Hence, the judge’s freedom is affected while going with the judicial and binding precedents. Whereas, the rules of statutory interpretation give a chance to the judge to consider every possible aspect of legislation while rendering judgment. Statutory interpretation is flexible while judicial precedents are rigid and the judicial body has stroked a balance between the two in their functions. 

References

 

Baude W, 'Precedent and Discretion' (2020) 2019 The Supreme Court Review

Cross FB, ‘The theory and practice of statutory interpretation’ [2020] Stanford University Press

Easterbrook FH, ‘The Absence of Method in Statutory Interpretation’ [2017] The University of Chicago Law Review

Gluck A, and Posner R, 'Statutory Interpretation on The Bench: A Survey of Forty-Two Judges on The Federal Courts of Appeals' [2018] SSRN Electronic Journal

Macleod J, ‘Ordinary causation: a study in experimental statutory interpretation’ [2019] Ind. LJ 94

Magyar J, 'Millar V Taylor as A Precedent for Statutory Interpretation (2018) 47 Common Law World Review

Samaha AM, ‘If the Text Is Clear-Lexical Ordering in Statutory Interpretation’ [2018] Notre Dame L. Rev 94

Solum L, 'Originalist Theory and Precedent: A Public Meaning Approach' [2018] SSRN Electronic Journal

Varsava N, 'Plurality Decisions and Stare Decisis: The Precedential Value of Dissenting Opinions' [2018] SSRN Electronic Journal

Wasserman H, 'Precedent, Particularized Injunctions, And Judicial Departmentalism: A Model of Constitutional Adjudication' [2019] SSRN Electronic Journal

 

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