Approach Deployed To Legal Reasoning By Judges

This essay seeks to provide a clear understanding to the approach deployed to legal reasoning by judges in the courts of England and Wales. How the judiciary work and how judges implement legal rules as, part of their decision making process. In addition some of these rules will be illustrated and some cases will be mentioned to provide examples and to demonstrate judge’s reasoning in decisions. Moreover the relationship between English Law and the judiciary will be very briefly evaluated and the implementation of judge’s interpretation and analysis in courts will be justified, as well as judge’s authority in the performance of statutes and their unique role in the Common law/Case law. The influence of the Human Rights Act 1998 over English legal system and the judiciary in their decision making process. followed by the conclusion of this assignment.

Evaluation :

Without any doubt if anything matters in our efforts to recognise law, it matters how judges do and/or should decide cases. In the past judges used to rely on divine knowledge to resolve cases .the judicial system was a very major supervising experience in the British legal history. In addition under the basic principle of the United Kingdom’s constitution, this is known as “the rule of law". Under the rule of law the judiciary are articulated to deliver their judgements in entirely fair and reasonable manner as well as by applying the rules of law in the decision making process they, do not allow any kind of personal preference or intervention when they decide a case.

Distinctly the judges contribute their time and play very critical and decisive role in controlling the exercises of power and command by the state. They use in particular a course of action which called the judicial review, moreover the legislation on the Human Rights act 1998 considerably increased their authority to influence and control the exertion of the government officials i.e., the parliament and the executive bodies.

There are four major areas of English law which fell in the practical use of the judicial system in England and Wales, they are:

Common law / Case law


The law relating to the European Human Rights Act 1998

European Community law.

In our current study we will be focusing on how the judges make uses of these sources and how they deploy their approach to legal reasoning by applying these principles in the courts of England and Wales.

Judges approach to the reasoning in Common law, in words of Hanson, precisely mean “all the laws made by judges relating to England and Wales" [1] .

As from this definition it is clear that it means judges make law but there is a lot of debate among the jurists that whether judges actually make law or they simply declare what the law is. This later approach is called the declaratory theory.

There are different terms used for judge made law such as precedent, case law and ratio etc which will be discussed shortly. This simply means that the law applied in the previous case with similar facts and the same rules should be applied to the new cases. This is a distinct feature of the English law which has its own merits and demerits. Among its many merits and advantages are, it is based on the principle of justice and equality and gives certainty to the law. On the other hand in its disadvantages are it makes the law rigid and a very slow in terms of evolution and development. For this reason great care is taken in understanding, reporting and recording the legal cases.

The judges listen to the evidence and the legal argument and finally by applying their legal reasoning. They do prepare a written decision in order to disclose their verdict in favour of a defendant or the plaintiff, and considerably by doing so judges reasoning containing long comments which are not firmly significant to the case, as well as their explanation of the legal principles on which judges make their decision. Importantly judges, in settling a case follow the decision of the higher courts, perhaps in cases with similar fact, However the English legal system is based on, meaning that judges are talented to make improvement of the law and decisions from existed cases heard at the courts still form the law.

One of the rules which applied by judges in their approach to legal reasoning as part of their decision making process is the ratio decidendi of a case, is the rule of law specifically treated by judges as a very important step toward the achievement of their conclusion. However judges may adopt more than one row in their reasoning and deciding a case by finding more than one ratio which may perhaps lead to the same result." Judges do not often signpost exactly why they have reached their decision and, the situation become even more complicated when more than one judge may be giving judgement. “ [2] 

Statutory interpretation:

Legislation, the Law which is enacted by the legislature or by its authorised bodies. The laws and the acts of the parliament are interpreted by the judges in the courts for its application with the rules which are:

(a) Literal Rule

(b) Golden Rule

(c) Mischief Rule

It is however not very simple to find and implement the real intention of the legislating body. For this purpose judges apply these rules of interpretations. The foremost among them is the Literal rule which means to take the statute in its literal meaning, for this dictionaries are consulted. As an example In the case of Fisher v Bell 1961 the restriction of offensive weapon Act 1959 made it an offence to ‘offer for sale’, certain offensive weapons including ‘flick knives’. James Bell a Bristol shopkeeper has, displayed a knife of the same kind in the shop front window with a label saying ‘Ejector Knife’; he was charged by the police authority for displaying illegal weapon for sale. “The divisional court judge held that he could not be convicted because, giving the words in the Act their tight, literal legal meaning that Mr Bell had not ‘offered for sale’ the knives. Moreover in the law of Contract displaying something in the shop window, is not technically means an ‘offer for sale’ it is simply an ‘invention to treat’." [3] 

Sometimes the words of a statute are ambiguous and equivocal. In such absurd situation, judges apply the Golden rule which means that literal meaning cannot be given to the rules in such circumstances. As an example in the case of Alder v George 1964 under section 3 of the official secrets Act 1920 it was an offense to abstract HM Forces in the surrounding area of an illegal place. Mr Frank Alder had been arrested while he was actually abstracting such Forces in such banned place." The judge applied the Golden rule to extend the literal meaning of the word in the statute to cover the action committed by the Defendant. However if the judge had been applied the literal rule in this case ,it would have been resulted or the outcome would have been that someone protesting near the base would have been committing as offence while someone protesting in it would not." [4] 

Another way for finding the real intention of the statutes by judges in the courts of England and Wales is to apply the Mischief rule i.e. to find out the reasons for the enactment of the legislation and decide the meaning of the words. However the “rules" are guidance to different judicial approaches, on the other hand judges see them as a justification for their decision making process. Judges sometime use the mischief rule when a statute is in force for many years and or, some statutes and rules of law stay valid in movement for many years and or, the continues use of such statute . A good Example will be the offence against the person Act 1861 which is almost certainly one of the practically used statute in the criminal law, additionally the mischief rule permit the jury to ignore the literal rule or perhaps meaning of a word used at that time to relate and force the intention of the parliament. According to Goodrich “the rules themselves do not dictate the outcomes of the cases, the rules of interpretation also reflect different approaches to the judicial process itself." [5] For example in the case of Corkery v Carpenter1951, on 19 January 1951 a man called Shane Corkery was charged and sentenced to one months imprisonment for being Drunk while he was in charge of a bicycle in public ,it was about 14:45 pm in the afternoon in Devon, England .The defendant Mr Shane Corkery was drunk and he was pushing his pedal bicycle along broad street in the area of Ilfracombe. He was in fact fund guilty by the court for the offence and charged under section 22 of the licensing Act 1872 with being ‘drunk in charge of a carriage’ , however the legislation in section 22 of the licensing Act 1872 has not clarified or established any kind of reference to the bicycles. It was uncertain and questionable that a bicycle is not a carriage, finally the judge at the court has decided to use mischief rule to reach to the decision in the case and it was held that the Act is to stop the public from using any type of transport on the highways while in dead someone is in the situation of being drunk from the cause of alcoholic drink or any kind of drugs to result such kind of intoxication. The bicycle was indisputably one the mode of transport and therefore the user Mr Shane Corkery was correctly charged without any kind of uncertainty and doubt.

By the assessment of these rules it is now clear how judges apply their reasoning and how they interpret the statutes. However the “rules are an accepted method of discussing the construction of statutory material by the courts and the judges themselves have regularly referred to these rules." [6] 

Judges approach to legal reasoning in the area of Human Rights and fundamental rights is the European Court of Human Rights Act 1998. According to the Human rights Act 1998 English judges in the courts of England and Wales have to decide Human Rights cases by considering the European court of Human Right ECtHR. They may adopt different ways to apply their reasoning in cases related to the Human Right Act 1998, but they will be still bound by the ECtHR Regulation to decide on cases in line with the Act itself. Judges take cases into account in the ECtHR and other relevant courts and decide cases in view of those decisions taken by ECtHR. “Judges note weather legislation is incompatible with the convention and if so issue a declaration of inappropriateness. However judges have no authority to announce a primary or secondary legislation unacceptable, even if they do have a power to quash a secondary legislation if the primary legislation that is based on does not prohibit it". [7] A good example would be the case of Raja Ghaidan v Antonio Mendoza 2004 , “in 1983 Mr Hugh Wallwyn-jamaes was given an verbal residential tenancy of a flat in west London. Until his death in 2001, he lived there in a stable homosexual relationship with his partner, Mr Juan Godin-Mendoza. After the death of the defendant’s partner Mr Hugh Wallwyn-James, the landlord Mr Ahmad Ghaidan, brought proceeding against the defendant Mr Juan Godin-Mendoza claiming the possession of the flat. The lords held that the Rent Act provision fell within the ambit of the ‘right to respect for a person’s home’ guaranteed by the European Convention on Human rights 1950, Article 8. It would be wrong to discriminate between heterosexual and homosexual couples in this context since the distinction on grounds of sexual orientation had no legitimate aim and was made without good reason. The house of lords also held that it was possible under the Human Right Act 1998, Section 3, to ‘read down’ or interpret the Rent Act provision so that it was complaint with the European Convention of Human Rights. As it has been mentioned earlier, decliration of incompatibility, this is an action it can take under the Human Right Act 1998 where a higher court judges an Act to be incompatible with a relevant part of the European Convention on Human rights." [8] 

There are assumptions of the political element in judges reasoning and judicial decision-making, a range of features may take part into play when a judge is deciding whether it is suitable to extend or expand the law by means of sensible judicial decision making. John Griffith, a distinguish academic, gave one view of the judicial role in a book which was first came out in 1977: “Judges are concerned to look after and defend the existing order and command. This does not mean that judges are not capable of moving with the time, or adjusting the change circumstances and situation. But their role in our society is to do belatedly … that this is so is not the matter for accusation. It is idle to criticise institutions for performing the task they were created to perform and have performed for centuries." [9] 

Furthermore, the structure of the political economy has been taken by some writers as the major descriptive feature when examining modern law and justice. Friedrich Engels, a writer of the nineteenth-century, prefered this approach. He argued that: Judges and especially the justices of the peace, find this meaning in the laws without further contemplation. “If a rich man is brought up or rather summoned, to appear before the court, the judge regrets that he is obliged to impose so much trouble, threat the matter as favourably as possible, and, if he is forced to condemn the accused, does so with great regret, etc, but if an unfortunate poor devil gets into such a situation as involves appears before the justice....... he is regarded at the beginning as guilty." [10] 


In conclusion, the existing English legal system is the result long time development and a very gradual growth of legal reasoning. Every source has contributed to the legal system and has furnished through the ages. Great jurists, law makers and other people have developed it to make it useful and productive for the resolution of disputes. Every source in itself could be a complete system as in the case of some countries. But the diversity and the verity of these sources have made the English law a unique system of law as one can see in the case of precedent.

However Judges approach to legal reasoning has created a very unique and comprehensive methods in the decision making process. In most cases judges are appreciative for each other in their contribution and hard work, the way judges handle the situation in the legal reasoning but, sometime they create hardships. In the cases to apply a statute the judges have to resort to some sort of precedent or alternatively to the rules of interpretation. As rightly mentioned by Hanson “Some legal cases cannot be resolved by negotiation between lawyers but they are determined by judges in the trial courts" [11] . One of the important tasks of the courts and tribunal is the application of the legislative rules to different facts and cases. They must decide whether these statutory rules apply to these cases.

The meaning of the language of statutes can change overtime and courts will disagree over the meaning of the words used in statutes. The judges set about deciding the meaning of these words by applying the rules of interpretation of statutes as mentioned above that is literal rule, golden rule and mischief rule.

Hanson says, cases may also turn into the form of law itself that is its internal context. Judges who rigidly adopt the internal approach are often referred to as formalist. These judges say that they don’t make law, they merely find it. They deduce this law by applying the rules of interpretation. [12] 

The role of the judiciary in the development of English law is apparent. But it is actually the parliament who, legislates or delegate to legislate the law in most of the cases. The way judge’s approach to legal reasoning in the courts of England and Wales has changed since the introduction of the Human Right Act 1998 and with the incorporation of the majority of the rights in the ECtHR into English law.

In the case of the European convention of Human rights and its relation with English legal system there are some obvious hurdles. Judges in English courts were indeed influenced by the convention in a variety of ways. Judges in the House of Lords stated that they would presume that parliament didn’t intend to legislate contrary to the ECHR. Therefore if during the course of interpretation of statutes, there were two possible interpretations one in conformity with the convention and one not in conformity with the convention, the interpretation in conformity with the convention should be preferred. [13]