1. Judicial Creativity

2. Specification
The extent to which the judges are able to
display creativity in the operation of the
system of judicial precedent and in statutory
interpretation.
Consideration of the balance between the
roles of Parliament and the judiciary.

3. Do Judges Make Law?
‘not according to his own private
judgement, but according to the
known laws and customs of the land;
not delegated to pronounce a new
law, but to maintain and expound
the old one’.
Sir William Blackstone

4. Ronald Dworkin
• He sees law as a seamless web of principles,
which supply a right answer – and only one –
to every possible legal problem,
• Judges have no real discretion in making
common law

5. The Modern View
judicial decisions are actually
based on a ‘complex mixture of
social, political, institutional,
experiential and personal factors’,
and are simply legitimised by
reference to previous cases.
David Kairys

6. The Judges Agree:
There was never a more sterile
controversy than upon the
question of whether a judge
makes law. Of course he does.
How can he help it?’
Lord Radcliffe
The simple and certain fact
is that judges inevitably act
as legislators’.
Lord Edmund-Davies

7. HOW DO JUDGES MAKE LAW?

8. Original Precedent
• Hunter v Canary Wharf Judges had to decide
if the interference of TV reception caused by a
large building amounted to nuisance. There
was no previous case so a new precedent had
to be decided. It was decided not to amount
to nuisance
• Airedale NHS v Bland judges had to decide
whether doctors could withdraw feeding to a
patient in a persistent vegetative state

9. Balfour v Balfour
• CofA had said written agreements between
spouses do not create enforceable contracts.
• the agreement (H to pay W £30 per month)
had been made while the couple had being
living amicably together and the husband was
about to go to Ceylon on government
business; they had not split up until two years
later.

10. Merritt v Merritt
• A husband and wife splitting up after 25 years'
marriage agreed in writing that if the wife kept up
the mortgage repayments on their joint home, the
husband would transfer total ownership to her. W
did keep up the payments, but H then refused to
transfer.
• The court in Merritt therefore distinguished Balfour
and said the precedent did not apply where the
marriage relationship had already broken down; the
Merritts' agreement was legally enforceable.

11. Pepper v Hart
the days have long passed
when the courts adopted a
strict constructionist view of
interpretation

12. SHOULD JUDGES MAKE LAW?

13. Fitzpatrick v Sterling Homes
• F applied to take over the tenancy which his partner
of 18 years had held, after he died.
• The landlord had refused to allow this.
• The law stated that a spouse or someone with whom
the tenant had lived as husband or wifeis allowed to
take over a tenancy in that situation.
• CofA had refused F’s application, HofL said this was
out of step with modern society and said a same-sex
partner could establish the necessary link.

14. Gillick v West Norfolk AHA
• HofL had to decide if a girl under 16 needed
her parent’s consent before she could be
given contraceptives.
• This was a controversial area – many people
said it was an encouragement of under age
sex.
• HofL held that a girl did NOT need parental
consent by a majority of 3 to 2.