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JUDGES MAKE LAWS OR THEY MERELY DECLARE IT?

"The judges do every day make law, though it is almost heresy to say so"-
Lord Denning

INTRODUCTION:
Who makes the laws: the judges, or Parliament?
The answer was once obvious and uncontroversial: the latter made them and the former interpreted
them. However, things were never really that simple, and certainly became far more complicated.
The growing use of the judicial review and the rise of so-called judicial activism have blurred the
boundaries that separated the three interlocking pillars of our constitution Parliament, the
judiciary and the executive
There is a classic dictum that Parliament makes law and the judges interpret the law. This upholds
the principle of parliamentary sovereignty which is held to be a core principle of the British
Constitution.1

What is the law? The law in England and Wales is made up of statutes; regulations issued by
government ministers and agents under statutory authority; by laws passed by local authorities;
common law and European Union Regulations. Most of these are therefore statutes or derived from
statutes. Common law is different. By Common law we do not mean that system of law that is
share by most English-speaking countries. Common law here is meant laws that have grown up
over time arising from court decisions and are not statutes2.The very fact that common law exists
in England and Wales suggests that judges can make law.

Lord Denning, one of the most renowned 20th century judges, argued that judges could and did
make law.There is a danger of England and Wales moving to krytarchy that is to say that they rule.
Some believe that judge made law would usurp the function of Parliament and would erode
democracy.

EQUITY AND JUDGE MADE LAW:

Equity is a form of English law that emerged in the middle Ages. Its role was to deal with situations
that were either not covered by statute or where statute was unduly harsh or unreasonable. Equity
surely implies that judges make law because they are filling in the gaps in statute. Various equitable
maxims have been developed to allow judges to do justice. It is hard to argue that this is not making
law.

Statutory interpretation is an area where Judges Powers are in dispute. There are three rules as to
how judges can interpret statute. The literal rules says that the judges must apply the law literally
using the words in statute in their ordinary signification. The golden rule allows judges a little
1 Calers,theRoleofJudges-making lawornot?may12th2012, https://gcalers.wordpress.com/2012/05/15/the-role-of-
judges-making-law-or-not/.
2 Ibid.
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more leeway, allowing judges to refer to various other documents around the statute such as the
report of Parliamentary commissions to aid understanding of the statute. The mischief rule is
derived from the 16th century and enables the judge to figure out what mischief to the
commonwealth the statute was intended to address and then to interpret the statute in such a way so
as the tackle the problem that the statute was supposed to tackle.

What does statutory interpretation to do with the tendentious question as to whether or not
judges can make law:

There are various landmark decisions that suggest that judges can make law. Judges certainly
change the law and presumably this therefore means that they make the law. Statutes are not always
something totally new they can be amending or repealing an existing law

If Parliament was dead against judges making law then surely it would have passed a law to that
effect. In other common law countries it is certain that judges can make law and do. Judges can
make law and occasionally do make law.

A recent case before the Supreme Court has once again highlighted the issue of judicial decisions
potentially replacing/ amending legislation enacted by Parliament. The case importantly pertains to
the judiciarys interpretation of existing law concerning itself. The eventual outcome of the case
would presumably have important implications for the way the higher judiciary interprets laws,
which according to some amounts to the judiciary legislating rather than interpreting laws.

This assertion has often been substantiated by citing cases such as Vishaka v. State of
Rajasthan(1997)3 where the Supreme Court actually laid down the law pertaining to sexual
discrimination at workplaces in the absence of a law governing the same. In numerous other cases,
courts have laid down policy guidelines, or have issued administrative directions to governmental
departments.

In the recent case of Suraz India Trust v. Union of India 4, a petition has been filed asking the
court to reconsider its own judgments regarding the manner of appointment and transfer of judges.
It has been contended that through its judgments in 1994 and 1998 (Advocate on Record
Association v. Union of India and Special Reference No. 1 of 1998) the Supreme Court has
virtually amended Constitutional provisions, even though amendments to the Constitution can only
be done by Parliament. This question arises since the Constitution provides for the appointment and
transfer of judges by the government in consultation with the Chief Justice of India. The two
Supreme Court Judgments however gave the primary power of appointment and transfer of judges
to the judiciary itself.

Importantly, one specific question which has been raised is whether the Judgments referred to
above really amount to amending the relevant provisions of the Constitution.

3 AIR 1997 SC 3011


4 (1993) 4 SCC 441
2
Another question raised which is relevant to this discussion is whether the interpretation by courts
can actually make provisions in the Constitution redundant.

An indication of the Supreme Courts attitude concerning this issue may be gleaned from the
recent speech of the Chief Justice of India, Justice S.H. Kapadia at the M.C. Setalvad lecture. The
CJI unambiguously stated that:

In many PILs, the courts freely decree rules of conduct for government and public authorities
which are akin to legislation. Such exercises have little judicial function in them. Its justification is
that the other branches of government have failed or are indifferent to the solution of the problem.
In such matters, I am of the opinion that the courts should be circumspect in understanding the thin
line between law and governance...

One author Richard H. Bruce5provided that the judges have stand an power to decide different
cases and dispute brought with consideration a legal procedure and rules to them, in this they make
different decision which form part of laws and thus they are described to as law makers.

CONFLICT BETWEEN DOCTRINE OF PRECEDENT AND DOCTRINE OF


SEPERATION OF POWER

The doctrine precedent provides that the decision of the superior court will bind upon the
subordinate court. The rule (ratio Decidendi) established by the court in its decision of the earlier
case becomes an authority to the lower court when deciding subsequent cases which material fact
are the same6. Tenderden CJ, emphasized that the decision of predecessors ought to be followed
unless is erroneous7. In Dodhia v. National Gridley Bank8 the court held that subordinate courts are
bound by the decisions of the superior courts. Therefore under the doctrine of precedent the
principle that the judge of the superior court introduce becomes a binding principle to lower courts,
and judges and magistrates of all lower courts of the same judicial hierarchy must apply the
principle unless there are crucial circumstance that may entitle them to repudiate from the previous
decision.

Under the doctrine of separation of power, government powers are divided into different three
organs of the state that are executive, judiciary and legislature (parliament). Each organ has its
jurisdiction and different functions from other organs. No organ should interfere with functions of
another organ. The judiciary is vested with power of interpreting laws and administering justice.
The power to make laws is vested under the parliament. 9 Therefore it is against the doctrine of
separation of power for judicial officers to make laws.

5 Richard H. Bruce,Success In law,2nd edition,1988,JohnMurray(Publishers) Ltd, 50 Albemarle Street, London, page


no 9

6Williams G, Learning the law 14th ed London: sweet and Maxwell (2013) pg93.
7 Selby v. Bardons (1832)3 B&AD pg 17
8 3 (1970) EA 191
9 See art 4 of the constitution of the united republic of Tanzania, 1977
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Whether judges make laws

The question as to whether judges make laws under the doctrine of precedent or not has raised two
distinct point of views in legal jurisprudence especially in common law jurisdiction.

Many Jurists and Judges themselves do not agree in the same sense. Some of them argue that
judges do not make laws but they declare it (declaratory theory) while other group argues that they
(Judges) make law.10 In this paper we shall critically discuss both two views as follows.

Declaratory theory:

Supporters of this theory argue that judges do not make laws; they only discover the law and
declare it and not more than that.11 They only declare what had been the law and they do not
introduce new laws. This view has been supported by various jurists.

In supporting this view sir Mathew Hale wrote the decision of courts of justice do not make law
properly so called, for that only king and parliament can do.

Blackstone12 pointed out that; they (judges) are depositories of the lawA judge is sworn to
determine, not to accord to his private judgment but according to the known laws and custom of the
land; not delegated to pronounce a new law but to maintain and explain the old one.

Edward coke had a view that; the judicial decisions do not constitute a source of law but rather a
proof what the law is13.

Some judges also do not agree that they make laws. For example in Reshwar Prasad V. State of
west Bangal14 the supreme court of India stated, no doubt the decision by the Supreme Court binds
all subordinate courts it should always be remembered that it (the Supreme Court) do not
enact.Also lord Esher stated there in fact no such thing as judges made law, for the judges do not
make law though they frequently have to apply the existing law to circumstance as to which it has
not previous been authoritatively laid down that such law is applicable15

Criticism on declaratory theory

Some writers criticizes this view, Bentham criticized a declaratory theory as a willful falsehood
having intention of stealing legislative power of the parliament by and for hands which could not or
durst not, openly claim it, John Austin, Munroe smith and Salmond observed a theory as only a

10 Nkobogo J, The doctrine of precedent in high court of Tanzania and the case of conflicting decision: challenges
from beyond: Dar es salaam; university of Dar es salaam school of law (2008) pg 13
11 Mahajan V. D, Jurisprudence and legal theory 5th ed: lalbagh lucnow: eastern book company law publisher
(1987)pg225
12 Ibid.
13 Nkobogo J, (op.cit) pg 13
14 (1965) AIR SC 1887
15 See Willis v Baddeley [1892] 2 QB 324
4
fiction that must not been taken seriously because the truth is that judges make laws.16 It seems
judges do not agree that they make law in order to avoid contradiction with the parliament and to
show that they are not against the doctrine of separation of power.

Proposing side (judges makes law)

In other hand some legal writers and judges agrees that judges make law. They term it as judge-
made laws. They argue that in deciding various cases judges introduces different new principles
that are binding to the subordinate courts and actually those principles are laws.

Dicey wrote: As all lawyers are aware, a large part and as many would add, the best part of the
law of England is judge-made law.17He means that many rules established by the judgments of the
court have been recorded and it is a part of the law in England. Also sir Pollock supported the view
by stating that: no intelligent lawyer would in this day pretend that the decisions of the courts do
not add to alter the law.18 Bentham Jeremy in supporting this position says: the judge makes laws
the same way for you and me.19

Even some judges in their function of deciding cases has tried to make clear that they make laws,
they has been providing various phrases that supports the view that judges make laws. A good

16 Mahajani V.D (op.cit) pg 226


17 Ibid pg 227
18 Nkobogo J,(op.cit) pg 14
19 Chakravat K.P, Jurisprudence and legal theory: New Delhi Eastern law house (1989)pg 159

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example is Justice Holmes who says: I recognize and without hesitation that judges do and
must legislate, but they can do so interstitially; they are confined to molar, to molecular.20
Same applies in African courts of common law jurisdictions, for example in Nigeria the court
pointed out that: we know that judges do more than just apply law as it is. They sometimes
extend
it and other times create new laws that remain binding on all until reversed or overruled by
courts competent to do so.21

CIRCUMSTANCES FOR JUDGES TOMAKE LAWS :

(1)Where there is a gap in the statute: the legislative law making is inadequate as it cannot
foresee all kind of situation that may occur in human life, as a result the law that is enacted by
the parliament cannot cover all cases in the society. A judge may make law where there is no
statute or statutory provision on the issue before him because no judge can refuse to give a
decision incase only because there is no law in hand. 22Therefore because judges have nothing to
interpret they have to establish a principle which should bind all subordinate courts in deciding
cases with same facts. In Ellerman lines ltd v. Read23 Scrutton J said if there is no authority for
this it is time we made one.

(2) Where there is contradiction ambiguous of the law. Sometimes the law may not be clear to
address the issue in hand, under this circumstance in the course of deciding a case before him a
judge may introduce a principle or rule to clarify the law and this principle binds the subordinate
court. For rule is binding upon all courts in Tanzania as the position of the law although it is a
judge-made law.

In Aeredale NHS trust v Bland (1993) HL, Lord Browne- Wilkinson stated,

The judges function in this area should be to apply the principles which society which society,
through the democratic process, adopts, not to impose their standards in the society. If the
parliament fails to act, the judges made law will of necessity though a gradual and uncertain
process provides a legal answer to each new question as it arises.

The views regarding the function of judges contain only a partial truth. Judges play both
functions of making and declaring the law. However the creative role of judges does not mean
that judges made the law in the same sense in which legislature make it. Judges function is very
limited as to interpret the law and doing so may play creative function that does not entitle him
with a mandate to abrogate the statute.

20 Ibid pg 161
21 Egboye J, Do judges make law? A cursory look at the recurring question: university of Ilorin faculty of law
(2011) pg 54
22 17 Chakravat K.P (op.cit) pg 60
23 [1928] 2 K.B. 144 (CA)
Donogue V stephenson24 is the best example of case ( Judges do make law). It is known as Case
Law or Judge Made Law. To eradicate the inequality and unfair decisions, The Court of Appeal
set law every day, their decisions become law which creates flexibility and a progressive judicial
system. The statute cannot be altered as it is literally written. The law on suicide and murder
cannot be dealt by the judges

CONCLUSION:

Lord Denning The Reform of Equity "The judges do every day make law, though it is almost
heresy to say so" A famous quote by Lord Denning mentioning about the making of the law by
judges but it is usually not mentioned every time that the law has been created , changed or
reformed. Normally in very hard cases the judges mention that the law has been created or
changed, but the law cannot be reformulated according to the wish of the court. The law is to be
defined and reformed under certain necessary norms as per the steps of legislation. Above we
have many cases in which the gaps were to be filled; the interpretations were to be made like the
case of DPP v JONES. So the judges do make laws but almost heresy to say so. Hence, judges
have been upholding, declaring and making law. Therefore Although judges have traditionally
seen themselves as declaring or finding rather than creating law, and frequently state that making
law is the prerogative of Parliament, there are several areas in which they clearly do make law"
25
the statement holds true in almost every sense ; that judges declare law and create laws also.
Unlike parliament, judges are not free to make laws whenever the need arises, they can only
make laws when an appropriate case come before a superior court. Therefore Judges are limited
in their ability to make law. Therefore restrictions placed on their law making abilities are:

Restriction I: Judges can only make laws if there is a test case (novel case) before them. They
must wait for a case to arise with a legal issue that has not previously been considered by any
court or which tests the validity of an existing law which requires interpretation of any law.for
example: Donogue vs. Stevenson26(snail in the bottle case )

Restriction II: The positions of the court in the hierarchy only superior courts in the hierarchy
create precedents. These are the courts of records where judgments are reported.

Restriction III: The personality of the judge some Judges are conservative who see their role to
adjudicate cases and not to make laws, while some Judges are progressive, who see their role as
both as an adjudicator and a law- maker.

A conservative judge is likely to leave the law making to parliament as they are supreme law
making authority.

24 [1932] A.C. 562 (Scot.).


25 Judgesseenthemselvesas,lawteacher,https://www.lawteacher.net/free-law-essays/constitutional-law/judges-
perogative-to-make-law-law-essays.php+&cd=1&hl=en&ct=clnk&gl=in.
26 [1932] AC 562