Saturday, July 03, 2010

The Carpenter


At times, we called it, 'the hammer'. Over the decades most of us reading law, graduated, retired from legal profession and we still calling it, the hammer. Howsoever it being sheepishly sounds when all of us 'named' it as the hammer on the hand of a judge, we may all be surprised. Commonly, at least, amongst my friends, it triggers no curiosity on why would a profound judge holding a 'hammer' when he is not fixing any wooden furnitures. It may be well understood if we trace back to the history of it, it is used in medieval era of England for the purpose to settle agreements of land. In fact, it is called 'Gavel'.

The sound of gavel signifies a decision made and no changes shall be made. The concept of it not only been practiced by England but The Great China in its memorable empires. Though it did not exist in 'hammer' nonetheless it meant the same. The judges, no matter in which country, in what form they practice or in what way the used the hammer. They are indeed,in my perception, the carpenter. Any defective wooden furnitures is to be fixed by them. They have various tools and at the very moment, they might even need to be creative enough so get the defective wooden stuffs fixed and it can be nicely seen. This is how a carpenter should be? If it ever not been properly repaired? Complains and dissatisfaction hence arisen. As Lord Hewart CJ expressed in R v Sussex Justices exparte McCarthy [1924] 1 KB 256 :

"...It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done..."

Having said that, the judges roles is vital and it is opined that the gavel is thousand times heavier than the usual hammer, psychologically. Their great lordships are burdened with such an obligation to make sure all the wooden made furnitures are all safe and quality assured. All tributes are nonetheless may not have gone to them. Each
gavel's sound, it indicates a decision made which need to take into consideration of policy, political pressure, and the interest of parties before them. Their decisions with a sound reasoning. Of course, people's view differs from time to time. Their view at the time it was decided may not applicable nowadays, outmoded laws. Mistakes are permissible but unlikely for them as judges. If once an unfavorable decisions made, it opens door to severe criticisms. For example, some brave judge with activist blood tends to create new laws, there it attracts negative comments in not respecting parliamentary supremacy. Some passivist judges whereas choose to stick with whatever decided, their hands are however tightened with precedent, similarly, it attracts criticism, too. However, it is to be noted, there can be more than one right answers towards single issue. All these criticisms, commentaries, dissenting judgement however makes law a lively one and would not have bored us, the law students. Whatever decisions made, credits and tributes can never left them.

It was not very long ago, where i think it was an interesting area in the study of law in my year one. This is a paper which i scored with distinction, common law reasoning and institution. I appreciated the chance of me studying this, especially dealing with judicial precedent and statutory interpretation, both are inter-linked. It was also few months ago, i had an intellectual discussion with a friend currently reading law in Oxford on whether a judge should create law to fix current problems or merely to apply the law. She is of the view that, the law itself is of non disputable as it is laid down black and white but the interpretation of each minds are disputed. That makes the law more complicated and uncertain. Anyway, i am still firmed on my perception where exceptions are needed. Lord Denning's creation of proprietary estopel and many others exceptions, undoubtedly, solved many problems.
Regardless, disputes has also relatively and have gradually increased due to these as this society is getting litigative when their rights are made conscious.


William Blackstone's view on judicial creativity is favorable for activists where law has not been created but merely to discover them. It remains dubious as to whether judicial creativity has create more troubles than settle disputes. The United Kingdom has got one characteristics, namely, the rule of law. Diceys postulates on it, where judges are the best protectors. Of course, the judges is supposedly to be fair minded and impartial. If the judges hand are so tight and bound by precedent and may have committed a conceptually wrong of judiciary where it results injustice. Would it then be unconstitutional? Having failed to perform justice, is definitely not the will of citizens, being put in such a cross road. What is their roles? Being the Carpenter, should have just fix whatever necessary as a Carpenter is not an inventor.

The common law started since time immemorial, by Henry Bracton( 1200-1268), he first laid down in latin phrase that :

'Si tamen similia evenerint, per simile judicentur, cum bona sit occasio a similibus procedere ad similia'.

It simply means, similar facts should result in similar ways, the spirit of stare decisis. It is said, judges are to do justice according to law and not doing justice by creating law. Practically, judges are now playing with words as its their expertise. In fact, purposive approach are getting popular by interpreting the words based on the 'intention' of the parliament.

Lord Coke stated:" ...it is the task of the judiciary in interpreting an Act to seek to interpret in 'according to the intent of [the parliament] that made it..."

This is what, doing justice according to 'law' which up to their discretion to interpret what did the parliament intended. In practical effect, at times, the standing of judges still prevails. The classic example would be, the decision in Vandervell v IRC, Grey v IRC and Oughtred v IRC.

The people's will stand. No?

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