Do Judges Sometimes Make Law?

This essay will argue that there are several areas in which judges actually do make law although; they should not be allowed to do so.

To begin with, A judge is a public officer who is invested with the authority to hear and determine litigated causes, and to administer justice between parties in courts held for that reason, usually they preside over a court of law, either alone or as a part of a panel of judges [i] . Even also, judges are the main actors in judiciary as they are also those who are going to determine the freedom in the judiciary and also the persons who are going to apply the law in the cases before them.

Historically, in times gone by, a great deal of the law is and always has been case law, which is made by judicial decision. [ii] But, it is a fact that to the legal principle that the primary role of judges is to apply existing law into the case he is deciding, so judges need to find any pre existing law that they wish to apply and by the result of this, judges are seen as law finders rather than law makers. So, instead they have to find the law and not act out or enact the law. This is due to the fact that by the set of guidelines of the separation of powers, the judiciary shall not get in the way with the duties of the legislature. As such, judges shall not interfere with the parliament, who are the main law makers of the country. On the other hand, it is also the fact that as the legal system changes or develops so does the position of the judges in the courts. So, instead of judges to stick to their line of job as law finders and the enactor of justice, they now put down a new principle of law, developed by them when they decide over a case. As a common law in most countries, this principle will then be applied by many others through the policy of judicial precedent and so to this extent, judges do actually make law. In addition, judges also make law by the principle of binding precedent. Under this is another aspect known as the stare decisis in which the inferior courts are bounded by the superior court’s decision in cases which have been decided. In formulating judicial precedent, judges formulate a new precedent, or overrule an earlier precedent, or for resourceful judges, they may interpret the precedent in a different way. Apart from that, by being more resourceful in creating law, judges may distinguish the cases on facts by deciding that the facts of a present case are contradictory to the binding decision. They may also rule that the principle which they cite upon is not ratio decidendi but rather it is obiter dicta. Additionally, judges may also make law by suggesting a law from the concurring judgement, a principle of law which was founded by the judges themselves. Another point to this is the fact that judges may uphold the superiority of the constitution by analyzing the constitutionality of the parliamentary acts and state enactments under the principle of judicial review, that where any laws passed by the legislature are subjected to the review by the judiciary, and this is where the judges may re-evaluate the laws on the ground of rules of law and constitutional supremacy. An example of this is the case of (Dato’ Yap peng v pp) [iii] . In this case, under the rule of judicial review, the court held that section 418A of the criminal procedure code is unconstitutional and therefore the court invalidated the provision prospectively. In other words, the law particularly section 418A is illogical and void after the date of the judgement. By looking at this case, it can be seen that judges are involved in the law making process as although they are not part of the legislature, siginifyingly, they still have power over the law making process. So, to this point, by looking at the inventiveness of judges interpreting the

law and the policy of judicial review which they have, at least some power has been given for judges to make law through their judgement in cases. Law making by judges which is particularly frequent in common law countries which practice the principle of judicial precedent, Meaning that whatever principle founded by the judge in a particular case will later on be followed as a law. Another example of this is when judges interpret an existing statute resourcefully for example, Article 5(1) of the federal constitution states that ‘no person shall be deprived of his life or personal liberty in accordance with the law’. It is fascinating to see as how judges interpret the word ‘life’ in Tan Teck Seng & Hong leong, where the court held that the term life does not refer to physical existence as such but it includes the dignity and necessities of life that is, the right to life and so on. And in the case of ‘Sugumar Balakrishman’, the court held that the term ‘personal liberty’ includes the liberty of an individual to seek judicial review. In addition, in the case of Roe v Wade, a woman’s personal ‘liberty’ was interpreted to include a right to abortion. This point shows that by interpreting the statute, Judges can influence the law making process held exclusively by the legislative division of the government. This is due to the fact that whatever principle is interpreted by the judges, it will later become part of the precedent and by looking at these cases, it can be seen that the principle will later on be followed as the principal of law as if the interpretation was made by the legislature who enacted the laws.

Nonetheless, there are still condemnations that judges should not be allowed to make law rather; they should only declare what the law has always been or enact the laws given. Furthermore, judges should only give consequence to the will of the parliament and they should act without interest by only applying the law as it is and according to how it is written and the intention of the legislation itself. For illustration, in Kruller v DPP, the House of Lords discarded the doctrine that the courts have some general power either to make or create new offences or to broaden the existing offences as law making process is the job of the legislature. Apart from that, judicial law making decision is not always a good thing. This is because sometimes, judge-made laws end up becoming bad laws. Another example of this is the principle of common employment in Priestly v Fowler which was regarded as a disastrous policy and the law had to be eradicated by a statute in 1948. This was because the policy mainly forbade an employee from suing the employer for the negligence of co-employees. Besides that, judicial law making whether as an original precedent or as an over ruled precedent is generally backdated. Normally, it is backward-looking unless the courts employ the doctrine of overruling. So, if judges leave the law and make their own decision, they might become partial in their decision even if the decision is just. And sometimes, judge made laws may clash with the parliament and executive made laws. An example of this is the case of (Airedale NHS Trust v Bland (1993)), where the House of Lords considered the fate of tony bland a football supporter that was in a coma after the Hillsborough disaster. The court had to decide whether it was lawful to stop supplying him drugs and artificial feeding that were keeping him alive, even though it would mean his death afterwards. Several law lords made it plain that they felt that cases raising ‘wholly new moral social issues’ [iv] should only be decided by the parliament and not the judges decision, and that the judges role was

being to apply the ideology which society through democratic process adopts, and not to impose their standards on society. Nevertheless, the courts disagreed to the lords and decided that the action was lawful, because it was in the patient’s best interest. Summing up, judicial law making may be seen as an undemocratic way of law making process as the law was made without consultation with the representatives of the people and law making bodies. However, much of the laws made by judges were always backed by the laws made by legislature itself. And so in most cases, law making process should only be left to the legislature as they are the one who under democracy are permitted to generate change through law making process and judges should not be allowed to interfere, or even make laws.

And, in conclusion it is clear that judges do actually make law in several areas in the legal system however, there are still criticisms that in their law decision making process they are taking powers to which they are not constitutionally entitled to, and judges should not extend their law making role into such controversial areas which is mainly meant for the official law making bodies that is the legislature.