Martin David Kelly (Edinburgh): The Novelty Issue: Should Judges 'Recast' Laws To Deal With New Developments?

Martin David Kelly is a Lecturer in Legal Theory at Edinburgh School of Law, and will be giving the second paper of Trinity Term: “The Novelty Issue: Should Judges 'Recast' Laws To Deal With New Developments?".

Abstract:

Under the standard model of the separation of powers, legislatures  make law and judges resolves disputes about the scope and  application of the law. But judges across the world are increasingly  having to decide how legislation should apply to ‘novelties’:  inventions and new technologies, and new types of situation, that  were not known to—or foreseen by—the legislature when it enacted  the relevant legislation. This creates a serious problem: as the  novelty was not contemplated by the legislature when it chose  which words to enact, it is largely a matter of luck—rather than  reasoned choice—whether that novelty falls within the content  expressed by enacting those words. I call this ‘the novelty issue’.  

Where the apparent content of legislation would generate  unsatisfactory—e.g. absurd, or seriously unjust—outcomes for a  novelty, the courts—in many important cases across the common law world—have bent or broken the words to avoid generating  those outcomes. Such judicial responses lie on a spectrum: from  reading the legislation in a slightly strained way, to ‘recasting’ it —  treating it as if it said something different. But should the judges be  doing this at all; and, if so, what justifies them in doing so, and what  constraints should be imposed on their power to do this? 

In this article, I examine how courts have addressed the  novelty issue and I propose a set of innovative solutions to it.  Drawing on cases from several common-law countries, I argue that  judges should have a power, subject to certain tightly-drawn  constraints, to strain or ‘recast’ legislation to avoid generating  seriously unsatisfactory outcomes for a novelty. The proposed  constraints on powers of recasting draw on other areas of law— especially human rights law and civil procedure—and are carefully  crafted to minimise the harms caused by legislation operating  ‘unluckily' for a novelty, while taking seriously—and seeking to  manage—the separation-of-powers and rule-of-law concerns about  judicial straining or recasting of legislation.

This seminar takes place in Massey Room, at Balliol College, University of Oxford (Broad St, Oxford OX1 3BJ) at 5:00pm on Thursday 1 May.

This event is open to anyone. No registration needed.

Pre-reading is desirable and strongly suggested, but not a requirement to attend.

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