The Separation Of Powers Theory Essay

1958 Words Aug 21st, 2015 8 Pages
Historically, parliament should make the law and judges simply apply the law, this fits in with the separation of powers theory. Blackstone 's dictation theory also states this. Judges create law by precedent and statutory interpretation.

Under the Literal Rule judges have very little scope for judicial creativity as they are limited to giving words in the Act of Parliament their plain, ordinary, grammatical meaning from a standard English dictionary, this means judges are following the exact words of Parliament. In Fisher v Bell, flick knives were on display in shop windows and the shop owner was charged with ' 'offering them for sale ' '. Technically, displaying them was an invitation to treat, not an offer to sale so they were found not guilty.

Under the narrow approach of the Golden Rule there is very little room for judicial creativity as judges choose words that Parliament have set out in the act, for example in R v Allen. In this case, under the Offences Against the Person Act (1891) it was offence to marry more than one person (bigamy). Marry could be to legally marry or go through a marriage ceremony. If ' 'legally married ' ' we 're applied it would mean that no one could commit bigamy. To avoid absurdity, the judges chose the meaning ' 'go through a marriage ceremony ' ' and the defendant was found guilty. On the other hand, the broad approach permits much more creativity as judges are effectively reading words into an act. In the case of Re Sigsworth, under…

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