Essay: Do judges make law?

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  • Published on: August 24, 2019
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  • Do judges make law?
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The subject of this essay is on the extent to which judges can correctly use their powers to shape the law. Emphasis would be on the instances where and why judges, rather than applying the law as enacted by Parliament, use discretionary powers to shape the law.

In the United Kingdom, the omnipotence of Parliament is one of the cardinal features of its unwritten constitution. However, the customary formulation of the doctrine is controversial, due to diversity in perception and narratives and most importantly, ways of resolving conflicts between parliamentary sovereignty and the rule of law. Undoubtedly, law making is the prerogative of Parliament and the traditional role of a judge is to declare the law. However, there are several areas in which judges do shape the law, thereby giving our laws new dimensions.

The doctrine of judicial precedent basically explains the way in which court decisions relate to each other. As a way of definition, a precedent is legal principle formulated by a court decision which is followed in a similar case.The fundamental principle of the doctrine holds that like cases should be treated alike. This mean that once a decision has been reached in a particular case, it stands as good law and should be relied upon in other similar cases as an accurate statement of law. However,it is persuasively argued that judicial precedents does not always make a particular decision obvious and obligatory. Hence, one of the main instances where a judge can shape the law is in the application of precedent. Where a precedent does not provide in clear terms what should be done in a case before the court, rather than referring such case to the Parliament, a judge can nonetheless make a decision which ultimately shapes the law.

Judge can correctly use their discretionary power to shape the law where rules conflicts, or exists but it is fuzzy at the edges and where such rule has a penumbra of uncertainty; in such un-provided for or unregulated cases. Thus, it is the judge’s role to use his own discretion regarding when he thinks rules need to be applied, changed, improved or abolished. According to Lord Denning, “we do not sit here to pull the language of Parliament and Ministers to pieces and make nonsense of it. We sit here to find out the intention of Parliament and Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.”

This above argument also applies to legislation to the point that even where a statute does dominate, the law-making power of the judiciary is not completely curtailed. The reason being that legislation needs to be interpreted and applied, and, these legislation according to Roach, may very well contain provisions that are ambiguous or vague. A court faced with such situation cannot ask Parliament for guidance or wait until a possible reform by Parliament, it has to make a decision one way or the other. With this, it is now indisputable and well accepted by judges too that as time progressed, it is universally accepted that judges do make decisions that shape the law. According to Reid, we no longer believe in fairy tales any more. So we must accept the fact that for better or worse, judges do make law and tackle the question how do they approach their task and how they should approach it.

In favour of judicial discretion in shaping the law, Hart argued that due to the language used, legislators might fail to address a particular problem or make provisions which are rather absurd and unfulfiling of the targeted task. Therefore, that it is essential that judges use a purposive approach to attempt to unravel the hidden context of words to reach a just outcome. For example, hard cases such as Riggs v Palmer and Henningsen v Bloomfield Motors are clear examples of ruling where the pursuit of formalistic goals would have harmed the purpose of clear and unambiguous statute. Similarly, another remarkable instance in which judges are prepared to shape and indeed shaped the law is in decision in Hall v Simons where the court refused to follow the earlier case of Rondel v Worsely which had given barristers immunity against claims for negligence in their presentation of cases. Thus, judges use constructive legislature to rule in favour of society. However, there are a set of laid down guide on the extent to which judges can actually assume the primary duties of Parliament to shape the law. These are contained in the five prepositions formulated by Lord Lowry in the case of C(cMinor) v DPP that:

1. If the solution is doubtful, judges should beware of imposing their own remedy
2. Caution should prevail if Parliament has has rejected opportunities of clearing up a known difficulty or has legislated, while leaving the difficulty untouched.
3. Disputed matters of social policy are less suitable areas for judicial intervention than purely legal problems.
4. Fundamental legal doctrines should not be lightly set aside.
5. Judges should not make a change unless they can achieve finality and certainty.

The above listed prepositions confirms the principle of parliamentary sovereignty. Nevertheless, in practice judges have been reluctant in following the above prepositions but instead, assumes and exercises their law-making function which has led a commentator referring to such stance as “growing appetite of some judges for changing the law laws themselves, rather than waiting for Parliament to do it.” This could be illustrated with the case of R v R (marital rape).

In conclusion, the power of a judge to shape the law is subject to many constraints and as such limited, and one of such constraints is that his “powers are exercised only to dispose of particular instant cases -he cannot use these to introduce new codes.”

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