Demarcated Institutional Roles for the Judicial Branches - Essay Example

The role of the judge is to declare what the law is, and not to make it.” A Reaction Paper Modern governance observes what is now known as the separation of powers doctrine, which contemplates demarcated institutional roles for the judicial and legislative branches. In our modern institutions, it is Parliament that makes the law and the judiciary that declares and applies it. Recently, the meaning of this “separation” has been challenged, as the demarcation line has become obscure, and both the judiciary and the legislature have, in the course of the regular conduct of duties, found the necessity to transgress ever so slightly into the functions of the other. The application of the law in particular controversies has been a contentious matter of this nature. Laws necessarily are framed in a general way so that they apply to a group of circumstances. When the judge seeks to apply these general principles to a specific case, he necessarily has to restate the law to a certain degree in order to put the case within its context. Similarly, the judge in common law cases is tasked to apply judicial precedent to subsequent cases to maintain stability in the law. The idea is that once meritorious, always meritorious – and, necessarily, the same for non-meritorious cases. Occasionally, however, the judge finds the need to modify or differentiate from precedent, to serve the ends of justice. It thus appears that the law is not merely black and white, but many shades of gray, which judges seek to address while at the same time seeking to preserve the certainty and stability of the law. History of the judicial function in England In the history of English law, however, it was not always the case that the judicial function was differentiated from the legislative, or law-making, function. In his treatise on the history and theory of statutory interpretation, William D. Popkin observed that originally, the judiciary and Parliament were not formally separated. Until the thirteenth century, Parliament was a mere group composed of powerful people summoned at the pleasure of the king. The function of Parliament at the time included “agreeing to pay taxes (it did not legislate taxes so much as assent to requests for money), dealing with matters of state (often foreign affairs), responding to petitions (what we would call private legislation), and passing some general rules (often prompted by petitions). Parliament was not so much a body as an occasion at which people met to parley or speak with the king as they saw fit” (Popkin, 1999). What may be deduced here is that judicial techniques such as statutory interpretation could not have existed while the legislature had not developed a sense of separation from judging. Until that was achieved, there was nothing to “interpret” as judges, being part of Parliament, could claim absolute competence in understanding the law. There was therefore a “shared sense of common enterprise” between Parliament and the judiciary because of the commonality in their functions, which resulted in a blurring of institutional authority. It was said that Judge Hengham had with full authority declared to counsel in his courtroom in 1305: "Do not gloss the statute; we understand it better than you, for we made it." No issue therefore could be made of what counsel might have perceived as “misinterpretation” of the law. Separation gradually developed from sometime in the thirteenth century until the seventeenth century. At the end of the seventeenth century, Parliament’s evolution into an established institution became complete with the acquisition of sovereignty. No longer beholden to the will of the monarchy, Parliament asserted its rights, which resulted in the civil war of 1642. The reigning monarch, Charles I, was beheaded in 1649, and a non-monarchical commonwealth was set up from 1649 to 1660. The Interregnum provided impetus for a serious attempt at codification of English law. Afterward the monarchy was restored, and in 1688 the principle of parliamentary sovereignty was established. The changes in Parliament’s organization and its legal authority caused fundamental changes in the role of the judiciary and its relationship with the legislature. No longer did judges actively participate in the formulation of the law. The controversy was thus borne surrounding the degree to which judges, in their attempt to declare what the law is in particular application, can re-state the meaning of the general statute as promulgated by the lawmakers. Statutory interpretation Statutory interpretation (also known as statutory construction) is the process of interpreting and applying statutes in situations defined by particular sets of facts. There usually exists some measure of vagueness or ambiguity in aligning the facts in a case with the theory of the law. It is the duty of the judge hearing the case to resolve these vague or ambiguous elements in such a way as to put the issues squarely within the parameters of the law, or at the very least, to find the “best fit” by which the controversy involving them may be viewed consistently with the legal intent. The noted jurist Blackstone views statutory interpretation as "the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.” He refers to the technique and method of interpreting laws as ground in Equity, which he defined as “the correction of that, wherein the law (by reason of its universality) is deficient." Since in the formulation of statutes, not all cases can be foreseen or even contemplated, it becomes necessary, for the general provisions to be applied to individual cases, that an authority be designated to define those cases in the sense intended by the legislator himself. In these instances, there is no better authority than the judge himself. While Blackstone was clearly agreeable to considerations of equity, he stressed that priority should still be given to the letter of the law where this is sufficient, and only when deficiencies exist should equity be applied. His own words eloquently make this point: “[T]he liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good, than equity without law: which would make every judge a legislator, and introduce infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.” Another point of view, not incompatible to Blackstone’s, views the issue of equity in legal interpretation as a distinction between the nature of the letter and the spirit of the law. Plowden likens the law to a nut. The nut’s shell is like that of the letter of the law, and its kernel the “sense” or spirit of the law. He said, "the fruit and profit of the nut lies in the kernel, and not in the shell [and] the fruit and profit of the law consists in the sense more than in the letter." Therefore, "if there is any defect in the law, it should be reformed by equity, which is no part of the law, but a moral virtue which corrects the law." Plowden also views the judge as someone who is in constant communication with the hypothetical lawmaker. “[I]n order to form a right judgment when the letter of a statute is restrained, and when enlarged, by equity, it is a good way, when you peruse a statute, to suppose that the law-maker is present, and that you have asked him the question you want to know touching the equity, then you must give yourself such an answer as you imagine he would have done, if he had been present." This “running conversation” between the judge and the hypothetical lawmaker is the essence of the judge’s discernment of the mind of the lawmaker – the determination of the legal intent. In the long history of statutory construction, certain methods, canons, and approaches have been developed to guide the judge in the proper understanding and application of this legal intent. Dr. Peter Jepson specifies three approaches to statutory interpretation, namely: (1) the Literal Rule; (2) the Golden Rule; and (3) the Mischief Rule. In applying the Literal Rule, it is the acknowledged role of the judge to apply the law, pursuant to the Latin maxim Dura lex sed lex – “The law may be harsh, but it is the law.” The judge has to resolve only what Parliament had expressed and in what sense it was expressed. To do this, the judge may resort to extrinsic and intrinsic aids related to the letter of the law and defining its literal meaning. The following are some decisions made in line with the Literal Rule (though from another jurisdiction, may be persuasive): "[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete. " Connecticut Natl Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). "A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929). "In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996). The Golden Rule, on the other hand, gives ready importance to the words used by Parliament which are clear and easily understood, but it will stop short of arriving at an absurd conclusion. Jepson cites the cases of R v Allen (1872) and R v Sigsworth (1935). In R v Allen involved the Offences Against the Person Act of 1861, which made it an offence for a non-divorced spouse to “marry” while his original spouse is living. In this case, the court decided that in the Act, “marry” meant “to go through a ceremony of marriage” as against mere cohabitation. To accept otherwise, the court said, would produce an absurd result. The case of R v Sigsworth involved a mother’s murder at the hand of her son. Since the mother died intestate (i.e., without a will), the Administration of Justice Act of 1925 stated that her next of kin would inherit. The son being the next of kin, he would have, by benefit of the literal interpretation of the provision, inherited his mother’s entire estate. While the wording of the act was clear, the court refused to let the son, his mother’s murderer, benefit from his crime. The court held that the literal rule should not apply, and instead the golden rule was used “to prevent a repugnant situation.” The third approach to statutory interpretation involves the application of what is termed the Mischief Rule. While the Literal and Golden Rules seek to determine what it is that Parliament said, the mischief rule seeks to discern that it is that Parliament meant. The rule goes back to 1584, in Hayden’s Case, and more recently it was applied to Smith v Hughes (1960). In Hayden’s case, it was specified that the Court should consider four points: (1) what the prevailing common law was before the Act; (2) what the mischief and defect was which the common law did not provide for; (3) what the remedy was that Parliament resolved to adapt; and (4) the true reason of the remedy. The judge in such a case should then suppress the mischief and apply the remedy. Smith v Hughes involved prostitutes who were charged with soliciting on the streets, in violation of the Street Offences Ace of 1958. They set up the defence that they were inside a building while tapping on a window to attract men, thus they were not “on the street”. Despite such literal interpretation, the Court applied the Mischief Rule and found them guilty because the Act was designed to prevent prostitution. (Jepson, 2007) Doctrine of precedent The doctrine of precedent, also known as the doctrine of stare decisis, is a fundamental concept in common law, and a distinguishing characteristic of English law. “Stare decisis” is the abbreviation of the Latin phrase “stare decisis et non quieta movere” which loosely translates as “to stand by what has been decided and not to unsettle what is established.” Under this doctrine, the decision of a higher court on a previous case involving essentially similar circumstances as one currently being decided should be controlling in the subsequent case. The judge is legally obliged to base his own rulings on previously decided cases, applying the principles of law determined therein. “This coercive character of the doctrine of precedent is a feature peculiar to the English legal tradition.” (Antoine 2008) Advantages of the principle of binding judicial precedent are “certainty, consistency and uniformity,” as stated by a former Lord Chancellor, Lord MacKay. But while there are clear advantages in following previous decisions, the method has also been criticized as a handicap on the development of the law. Its conservatism hampers it from reflecting changes in social realities. While it is theorized that the great body of cases decided since the reign of Edward I comprises the basis of court decisions, in practice, the common law of England has “manufactured by the decisions of English judges… A judicial precedent speaks in England with a voice of authority; it is not merely evidence of the law but the source of it; and the courts are bound to follow the law that is so established.” (Salmond, 1900) This characteristic of English law may be attributed to the fact that English judges occupied a powerful and authoritative position. The judges of the king’s courts comprise a small and compact body of legal experts, working in harmony and imposing their own ideas of law and justice, and thereby establishing a homogeneous system of common law, unopposed by local custom or by legislation. Conclusion A moderate view was advanced by Popkin (1999). Popkin observed that one view, known as the “airtight compartment” view, held that judges have no participation in the law-making function. He advanced that a better view admits of a modest competence on the part of judges in helping to “fit statutes into their past and future – their temporal dimension.” More sweeping is the opinion by Lord Browne Wilkinson (1998). He wrote, “This theoretical position (that judges merely declare the law) is, as Lord Reid said, a fairy tale in which no-one any longer believes. In truth, judges make and change the law. The whole of the common law is judge-made and only by judicial change in the law is the common law kept relevant in a changing world.” Wilkinson’s statement is more than mere rhetoric. Almost two centuries ago, Plowden (1816) expressed an opinion similar to Popkin’s and Wilkinson’s. He called the words of a statue the “verberation of the air” and do not comprise the statute per se. The words are but the “image” of the law, “and the life of the statute rests in the minds of the expositors of the words, that is, the makers of the statutes. And if they are dispersed, so that their minds cannot be known, then those who may approach nearest to their minds shall construe the words, and these are the sages of the law whose talents are exercised in the study of such matters. The Right Hon. Lord Denning, the former Master of the Rolls, is as passionate in his argumentation for the exercise of judicial discretion in the interpretation of the law. He draws an analogy between the practice of law and that of science, so emphatic it bears repeating: “If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling down about them. Just as the scientist seeks for truth, so the lawyer should seek for justice. Just as the scientist takes his instances and from them builds up his general propositions, so the lawyer should take his precedents and from them build up his general principles. Just as the propositions of the scientist fail to be modified when shown not to fit all instances, or even discarded when shown in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice. (Davis v. Johnson [1979] AC 264) This writer agrees with the above sentiments. It is true that the law should, indeed, be stable. It should not be subject to the prejudices and personal sentiments, no matter how well meant, of individual judges. Were the law’s interpretation freely allowed, then this would open the doors to unequal application of the laws for different defendants in the same situation, depending upon which judge hears the case. However, the strict adherence to the letter of a statute or the precedent of a case should not unduly impair a judge from rendering what, in his best sense, is a fair judgment. The social milieu changes, and conditions may not be the same as those appreciated by previous legislators or judges. The law should be dynamic and should be understood in a way that is relevant to the times; likewise, the circumstances of a case should be seen in its proper context. The judge should thus be allowed the discretion to distinguish against precedent, or interpret the words of the law, as needed, to advance the cause of justice. Application of the law should not be purely mechanical, but skilfully and competently as the case calls for it. References Antoine R., (2008) Commonwealth Caribbean Law and Legal Systems, Google Books Blackstone, W. (1765) The Commentaries on the Laws of England, Clarendon Press, Oxford. Connecticut Natl Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Davis v. Johnson [1979] AC 264; opinion by the Rt. Hon. Lord Alfred Thompson Tom Denning Gall G. (1983), The Canadian Legal System, 2nd ed., Carswell Legal Publications, Toronto Jamail Center for Legal Research, Tarlton Law Library, The University of Texas School of Law as seen in http://tarlton.law.utexas.edu/ Jepson P. (2007) Lecturer for A2 Criminal Law., as seen in http://www.peterjepson.com/law/movdetails.htm Kleinwort Benson Ltd. (Appellants) v. Lincoln City Council (Respondents) 29 October 1998; opinion of Lord Browne-Wilkinson Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996). National Westminster Bank plc (Respondents) v. Spectrum Plus Limited et al. (Appellants) [2005] UKHL 41, opinion of Lord Nicholls of Birkenhead Perell, P. (1978) Stare Decisis and Techniques of Legal Reasoning and Legal Argument, Weir & Foulds, as found in http://legalresearch.org/docs/perell.html Plowden, E. (1816) An Apprentice of the Common Law: Containing Divers Cases upon Matters of Law, S. Brooke, Paternoster-Row, London. Popkin WD. (1999) Statutes in Court: The History and Theory of Statutory Interpretation (Duke UP) Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929). Rombauer M. (1978), Legal Problem Solving: Analysis, Research and Writing, 3rd ed,, West Publishing Co. Salmond, J.W., (1900) Law Quarterly Review, HeinOnline 16: 376 “Sir Ralph de Hengham, Justiciar. Memorials: 1305”, Memorials of London and London Life: In the 13th, 14th and 15th centuries (1868), pp. 55-59. Riley, H.T. (ed.) (1868), Centre for Metropolitan History The Rt. Hon. Lord Denning, 1979, The Discipline of the Law Butterworths, London. Webster, Walbolt & Davis (2008), Statutory Construction in Florida: In Search of a Principled Approach, Coastal L. Rev, Fla. Wheeler, The Essentials of the English Legal System (2005) 2nd edition. Longmans. Williams G. (1973), Learning the Law, 9th ed. Carswell,Toronto. Read More