Analyse the Extent to Which Judges Are Able to Develop the Law Through the Operation of the Doctrine of Judicial Precedent and in the Interpretation of Statutes. Discuss Whether Judges Should Be Able to Develop the Law. Essay

The constitutional role of the judiciary is to apply the law that parliament makes, as said by Lord Diplock in Dupont V steel (1980), ‘Parliament makes the laws, the judiciary interpret them’. However, judges have the power to change rules or make new rules through precedent or statutory interpretation, as mentioned in R V Sigsworth (1935) by Lord Denning, ‘We fill in the gaps’.
The doctrine of precedent is based on the requirement that judges must follow decisions made in earlier cases (stare decisis), and on the face of it would seem to limit their freedom to be creative. First of all, there is the hierarchy of the courts, which means that courts are bound by decisions of other courts higher up in the hierarchy. Although with the use of the 1966 Practise Statement, the Supreme Court is allowed to depart from its own earlier decisions, as for example in Hetherington v British Rail and Shivpuri and also in R V Gemmell and Richards (2003) where the Supreme Court overruled the decision in Caldwell by using the 1966 Practise Statement. (This abolished objective recklessness and made a new rule that all recklessness is subjective. The Court Of Appeal isn’t covered by the 1966 Practise Statement (even though Lord Denning wanted the practise statement to extent over to the Court Of Appeal).   However the Court Of Appeal has some discretion using the rules in Young. But these are limited in use to certain circumstances.
The binding part of the judgement is called the ratio decidendi and later courts are bound to follow legal principles on which the decision was based if their case contains similar facts, as for example, in Donoghue V Stevenson (1932) a precedent was set that a customer could sue a manufacturer in negligence. Obita Dicta (other things said not directly related to the decision or dissenting judgements), are persuasive rather than binding precendents, as seen again in Donoghue V Stevenson, Lord Atkins set an obita dicta commonly known as ‘the neighbour...