Do Judges Make Law?

“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.”

This essay seeks to establish several areas in which judges do make law. Presently a judge’s role is not to make law but to uphold the laws which are made by the parliament. Each law which is made by the parliament must be clearly defined and applied by the judges in accordance with the cases. While making decisions about a case a judge must follow the precedent set by higher courts with respect to the situation and conditions applicable, as this also helps the one involved in the case as they know they will be treated alike and not randomly. There are various laws which are judge made like the contract ad tort law and many other important developments like the development of negligence as a tort. Though later statues were passed on these subjects too and parliament attempted to include the common law in statutory law but still the original principles created by judges are followed.

Airedale NHS Trust v Bland (1993), here the House of Lords have to consider the fate of Tony Bland a football supporter left in a coma after the Hillsborough stadium disaster. The court had to decide whether it was lawful to stop supplying the drugs and artificial feeding which kept Mr Bland alive, even though it was known that stopping medicine would lead to his death. The courts had only option to make a decision one way or the other, and they decided that the action of stopping the medicine and artificial feed was lawful in patient’s best interest as per circumstances.

What opportunities do judges have to be creative?

In 1345, an English lawyer argued to the court, “I think you will do as others have done in the same case, or else we do not know what the law is.” “It is the will of the Justices,” said Judge Hillary. Chief Justice Stonore broke in: “No; law is that which is right”. The controversy is still ranging amongst judges. Presently the problem arises on the part as to how exactly do judges play role in law making, “Do Judges Make or Declare Law”.

This is believed that in “hard cases” judges can and do create new law. While talking about the judge’s role, during creation of law which takes place especially in two fields:

1. In the development of the Common Law
2. In the interpretation of Statutes

Their freedom is restricted by the rules of precedent and the supremacy of Parliament & by the rules of precedent and the rules of statutory interpretation.the courts cannot move out of there shoe of legislature and make decisions or create laws but they have to be confined to their territories and the guidelines given by them is to be followed until the legislature steps in to make law. Their has to be some means under which the law is created like high and low parameters. ‘Judicial activism’ should not become ‘judicial adventurism’ and lead a judge going in pursuit of his own notions of justice, ignoring the limits of the law.The courts must be confident in giving the effect to constitutional policy like equality, socio- economic justice, liberal interpretation and recognition of rights of the individuals giving effect to a more meaningful life etc.

Donogue V Stephenson 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 (Terminally ill people are aided to die) because of the statute law and this can only be changed by the government who itself is the creator of law and is hence the most powerful law maker.

Do judges make law?

According to the official line of course the judges do not make law but they do make laws in three circumstances:

(1) Interpretation:

Parliament cannot define each and every possibility or define and explain every term in statute, so there arises a need for the judge to interpret the statute such that it can be applied to the case before courts. Example: Bennion criticises is DPP v Jones (1999), which concerned a demonstration on the road near Stonehenge. In this case the Lords looked at the rule, that the public have full right to use the highway for purpose like walking, passing and re-passing and else uses related to it but not demonstrating and picketing. In Jones, the House of Lords stated that the rule levied unrealistic and unwarranted restrictions on everyday activities, and that the highway is for public, and public has full right to use the highway for reasonable purposes.

(2) Filling in the Gaps:

The situation may arise in which there is no express law. Example, the Factor tame cases, there was no law as to UK statutes were to be dealt with when they conflicted with EU law. As a result of decisions in EU courts, the House of Lords developed a new doctrine to allow the statute to answer the question without completely abandoning the principle of parliamentary supremacy. The development of new doctrine which lead to political instability leading to fundamental changes like break up of UK constitution with European Court of Justice.

Example: This case represents that the judges must be careful while changing the decisions or making any law. However the judges sometimes fail to do so . we hence have an important criminal case of R v Dica (2004) the Court of Appeal overruled an earlier case of R v Clarence (1888) and held that criminal liability could be imposed on a defendant for infecting another person with HIV. This change in the law was made irrespective of the fact that the Home Office had earlier decided that such a legislation should not be introduced which would impose liability in this situation. The Home Office observed that this was a case of social and public health policy .

(3) Common Law

There are various areas in which there is no statute law. In such a condition the judgements built by judges on existing cases are influenced by previous cases in a way that could be called law making. For example the rule in Rylands v Fletcher and it’s amalgamation into nuisance in the Transco case. Since 1966 it has been possible for the House of Lords to reverse its own previous legal decision – the obvious case is R v R (not A v A) concerning rape within marriage. Secondly, In R v Ahluwalia the wife in this case suffered from continuous threats like physical and mental from her husband and was brutally beaten up. One evening after being molested again she couldn’t fall asleep thinking about her husband’s behaviour so she went downstairs and poured petrol into a bucket and set fire to her husband’s bedroom. He died from his injuries , though her intentions were not to kill but only to inflict pain. Provocation was pleaded as a second line of defence based on her ill treatment throughout the marriage, but she was convicted of murder. It was followed by an appeal.

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” the statement holds true in almost every sense ; that judges declare law and create laws also.