Do Judges Make or Find the Law

Holland and Webb assert that a fundamental legal skill is to find the law. Moreover, in their analogy about a shop wanting to know the law on displaying knives for sale, they posit that it cannot be assumed that one can find the answers to all legal questions in a book. They acknowledge that precedents must be considered; that the answer lies in either existing legislation or in case law. Accordingly, the courts work by the same principle-decisions are based on previous legislation and precedents. The implication here is that when the judges acknowledge the precedents set by other judges when utilising a case-law system, to all intents and purposes they are reaching their decisions founded on judge-made laws; and then make new policies from them. The question this essay aims to consider is whether this is really the case or whether the decision making judge is merely finding the precedent of law that fits the case he or she is presiding over.

The question will be answered by way of consideration of case law and precedents and subsequently how the judges may or may not be utilising them when reaching a decision.

Both common law and case law are grounded in the doctrine of precedent that states “a decision made by a court in one case is binding on other courts in later cases involving similar facts. In this way, uniformity within the law is, in theory, to a large extent maintained, and one of the most basic demands of our conception of justice is met, by the treating of like cases in like manner” [2] . The doctrine of precedent is that of stare decisis (standing by previously decided rules of law). It only applies to rules of law decided in superior courts, is applicable to all future case, and is immediately operational. It should be distinguished from

res judicata, which means standing by a past decision unless it is reversed (as distinct from overruled) on appeal, applicable in all courts, only affecting the parties to a case, and operational once all appeals have been exhausted. Both doctrines are of practice rather than law, although they are, in effect, as binding (or more so) than any statute.

Precedents comprise points of sufficient legal importance that can be employed as a gauge to other cases with similar facts. Examples include Donoghue v Stevenson in 1932 [3] , containing Lord Atkin’s statement of the ‘neighbour principle’ which was to become the foundation stone of later cases involving negligence and Carlill v Carbolic Smoke Ball Company [4] is an English contract law decision by the Court of Appeal, notable for its curious subject matter and how the influential judges (particularly Lindley LJ and Bowen LJ) developed the law in inventive ways. Carlill is frequently discussed as an introductory contract case, and may often be the first legal case a law student studies.

There are two main theories of precedent. The first of these is the declaratory theory; a view expressed by Blackstone and concurred with to some extent by Roger Dworkin in modern times, which states that the common law does not change – in each case the law is merely re-stated but not added to – the judges are declaring the law on the basis of past decisions. The legal writer David Kairys opposes Dworkin’s view that judges have no real freedom within the doctrine of judicial precedent and “dismisses his idea of a seamless web of legal principles” [5] . He is a proponent of the second theory. The realistic theory is that laws do change – all principles must originally come from somewhere, and the abstraction of old principles is the creation of new law. This theory has many proponents, a Professor Hart stating that he “accepted that judges make new law and that this is necessary where there are no existing rules to cover the situation” [6] . Lord Reid, for many years the senior Law Lord in the late 20th century went further, in a speech entitled ‘The Judge as Lawmaker’ said, ‘We do not believe in fairy tales anymore, so we must accept the fact that for better or worse judges do make law.’ An example is the case mentioned previously regarding Donoghue v Stevenson. Hart could see that it was a new law being made (that a manufacturer is liable to the consumer for defective products) which filled a gap in the existing law. Dworkin, on the other hand, could see it as finding an existing principle (that people had a duty not to harm others) and extending it to a new situation.

What we are concerned with here is precedent in theory and in practice: how the practical operation compares with the formal rules of the doctrine. The doctrine of precedent depends on three things: the hierarchy of the courts, the written records of cases and the approach of the judges. In theory at least, the judiciary are bound by precedent. As far as case law is concerned, precedent is paramount when deciding cases; although the issue of judicial autonomy comes into question.

“Case law consists of the rules and principles stated and acted upon by judges in giving decisions. In a system based on case-law, a judge must have regard to these matters: they are not . . . merely materials which he may take into consideration in coming to his decision”. R. Cross, Precedent in English Law [7] .

A single decision by the Supreme Court is somehow not case law. Rather, the definition of case law is not limited to single decisions by legitimate tribunals. The term “case law” applies not only to single decisions by courts, but also to the extent to which subsequent decisions by those courts and others affirm and/or reverse prior decisions. Thus, judges are in the position of being able to base their decisions on precedents. They do not reach decisions founded on violations of common law alone. To explain simply, the common law is the permanent mark (the evidence) of the court’s ruling on what was established as law by the law makers, of what the law-makers had intended the law to be; only liable to change by parliament.

“This Common Law, through the Usage, Practice and Decisions of the King’s Courts of Justice may expound and evidence it, and be of great Use to illustrate and explain it; yet it cannot be authoritatively altered or changed but by Act of Parliament.” The History of the Common Law of England, Matthew Hale, 1713.

Thus, when a judge confirms or follows a law passed by a legislature he is only confirming the law, as judges are supposed to do; he or she is not the one making the law.

In the 19th century, the judges generally adopted the position that they were not concerned with the justice of their decisions, and that they did not make law, but merely interpreted it. In modern times, there still exists a powerful ideology that denies the existence of “judicial legislation,” that denies any creative role to judges. Judges should follow precedent. It is tantamount to saying that if a judge feels his or her decision is more valid than the legislation it is making legislature somewhat redundant; and thus is not in the remit of judges. An older form of this ideology was captured in the saying that judges do not make the law, they just find it or declare it [8] . The popular view of the judge is not a view that gives the judge a creative or law-making role. The judge is supposed to do justice, not make it up. It would appear that the utilisation of the ‘interpretive approach’ [9] offers very little scope for the judiciary to exercise discretion when deciding cases. To all intents and purposes, their role is to consider previous cases, identify the legal principles and identify whether justice will be done in the current case, from both their perspective, and the perspective of society (a policy issue, for an example). However, whilst this would seem to restrict judges to following what has gone before, the theory does allow room for them to avoid the precedent in order to do justice. The legal system certainly does not restrict this. Occasionally, judges are called upon to give a ruling or make a decision when faced with a situation for which there seems to be no precedent. In these circumstances, judges can be said to be formulating original precedent Examples of original precedent can be seen in such cases as Hunter v Canary Wharf (1995) [10] and Airedale NHS Trust v Bland [11] ; although Blackstone and other proponents of the declaratory theory would argue against this. In controversial cases such as these there is a call for the rulings to be left to parliament and that judges should not have an involvement and indeed, this sometimes happens. Euthanasia cases requiring a request for the right to die have witnessed this. In the Bland case, for example, a minority of the Law Lords who presided expressed this view that they were reluctant to reach a decision on the issue-it should be in the remit of parliamentary consideration; as was decided in the Diane Pretty case. Parliament is elected. MPs are our representatives and so can be said to make laws on our behalf, to protect society as a whole. Most people accept Parliament’s right to make law, even if they don’t agree with a particular law. Judges are not elected and people may find it harder to accept their role in law-making.

Both case law and the rules of precedent, and statute and the rules on statutory interpretation involve a certain amount of discretion. The greater the discretion the more arguable it is that judges are making law. It is the “application of precedent by judges, whether they are developing the common law (for example in areas such as negligence or murder) or interpreting statutes is the main mechanism whereby judges make law” [12] . A precedent can be overruled or even reversed (res judicata) by a higher court than the one where the precedent was set. Furthermore, since the 1966 Practice Statement the House of Lords is also able to overrule itself. Fundamentally, The Practice Statement allows the House of Lords to overrule its own earlier decisions “if it appears right to do so”. This gives a wide discretion and allows an old law to be changed and a new one created. It means that the Law Lords can choose when they should use the Practice Statement and when to leave the law to stand as it is. It is used rarely – it was first used in a civil case when Conway v Rimmer (1968) [13] overruled Duncan v Cammell Laird (1942). [14] It was not used in a criminal case until 1986 when the case of R v Shivpuri [15] overruled Anderton v Ryan. [16]

More importantly, however, rather than change precedent, a court can distinguish the case it is hearing, suggesting that another precedent may be more applicable. Professor Goodhard stated “It is by his choice of material facts that the judge creates law”. This can be seen in the cases of Balfour v Balfour (1919) [17] and Merritt v Merritt (1971) [18] .

There is little doubt as far as the author is concerned that judges do make the law; the issue is whether they have too large a role in policy making. They make laws that adapt to social change- such as rape in marriage, for example, and are clearly involved in policy decisions and take the wider community interests into account as can be seen with the Yorkshire Ripper case in Hill v CC of West Yorkshire [19] and the ‘fair, just and reasonable’ issue in relation to duty of care. The concern is that judges are eager to get involved in policy making and may not use precedents as they should be used. Legal writer David Kairys theorises that “judges are guided not by precedent, but by policy, and their own views. Precedents are cited purely to ‘justify’ the decision”. Ponzetto and Fernandez, however, in the empirical study of An Evolutionary Comparison of Case Law versus Statute Law [20] , sum up the debate regarding judge made laws when they document: “biased judges favour different types of litigants and can distinguish precedents at some personal cost. Distinguishing has a social cost because it allows judges to implement their idiosyncratic biases that distort the rule away from efficiency, but it also introduces new empirical dimensions into the law, thereby yielding

a social benefit through increased precision of the legal rule”.

Conclusion

Judges do make law; they make law all the time and they always have. Laws do change as new situations abound and based on the Realistic theory, it has to be accepted that that judges do indeed make new law and that this is necessary where there are no existing rules to cover the situation, as Professor Hart asserted. After all, you cannot pass judgment on a case relying on decisions made in the past, which have not previously occurred. However, case law is based on judicial whim. It is a system where judges are not bound by the law but by what they think the law should be. The outcome is that judges possess the ability to use the law as they view is the right use of it in a particular situation; a paradigm shift away from the original framework of passing judgement. Thus, David Kairys’ theory may be apt; although the judges adopt a “formalist” stance to their decision-making and do propose to decide most cases according to the law, or the precedents; and act accordingly in the search for the better “legal” argument. Consequently, it is the application of precedent by judges, whether they are developing the common law (for example in areas such as negligence or murder) or interpreting statutes is the main mechanism whereby judges make law. It involves a certain amount of discretion and the greater the discretion the more arguable it is that judges are making law.

The issue of judicial autonomy is a source of contention as far as law-making or law-finding is concerned and there needs to be a balance between the roles of Parliament and the court as the judiciary is getting readily involved in policy making and many people think policy should only be matter for government and Parliament; judges recognise this as seen with the euthanasia cases. However, the role of the judiciary is a good thing as far as law making is concerned as new empirical dimensions are being introduced into the law, thereby yielding a social benefit through increased precision of the legal rule”.