NCJ Number
50096
Date Published
1977
Length
12 pages
Annotation
THE EXISTENCE OF JUDICIAL CREATIVITY IN A JUDGE'S INTERPRETATION OF STATUTES, IN DECISIONMAKING, AND IN DEVELOPING COMMON LAW IS DISCUSSED. ILLUSTRATIVE EXAMPLES ARE TAKEN FROM ENGLISH LEGAL HISTORY.
Abstract
IT IS ARGUED THAT JUDICIAL CREATIVITY DOES EXIST IN INTERPRETATION OF STATUTES AND DEVELOPMENT OF COMMON LAW IN ENGLAND EVEN THOUGH JUDGES ARE RELUCTANT TO ADMIT IT. IF A STATUTE IS OPEN TO MORE THAN ONE INTERPRETATION, THE JUDGE IS REQUIRED TO LOOK AT THE WHOLE OF THE LAW ON THE MATTER, AND DECIDE WHAT THE INTENTION OF PARLIAMENT WAS IN WRITING THE LAW. HOWEVER, THERE IS OFTEN A DIVISION OF OPINION WHEN A FORM OF REGULATION ARISES, AND A JUDGE MUST DECIDE WHETHER TO INTERPRET THE LEGISLATION NARROWLY OR WIDELY. CREATIVE INTERPRETATION IS ALLOWED IN THIS DECISION. EXAMPLES OF CASES IN ENGLISH LAW WHICH ILLUSTRATE THE USE OF THIS CREATIVE INTERPRETATION ARE PRESENTED. A DISCUSSION OF HOW CREATIVE JUDGES SHOULD BE, AND VIEWS INDICATING DISAGREEMENTS AMONG JUDGES ON THE SUBJECT ARE INCLUDED. IT IS ARGUED THAT THE DIFFERENCES BETWEEN THE MORE LITERAL AND THE MORE CREATIVE APPROACHES MAY LEAD TO DIFFERENT CONCLUSIONS AND JUDGMENTS WHEN THE SAME STATUTE IS INTERPRETED BY TWO JUDGES. (DAG)