DO JUDGES MAKE LAW?
Judiciary is that branch of the state that adjudicates upon conflicts between state
institutions between state and the individuals and between individual. The traditional
roll of the judge according to the declaratory theory as to decide cases by applying the
law. Judges can only declare the law in the settlement of dispute and do not create any
law in the adjudicating process.
The declaratory theory of the law maintains that in developed country like the United
States and United Kingdom the law is already complete and perfect. Judge, simply
declare the law. This theory in its purest from denies the judiciary any law making
role.
The declaratory theory is very useful in maintaining the cardinal constitutional
principles of separation of power and sovereignty of Parliament. According to the
doctrine of sovereignty of Parliament, Parliament can make or unmake any law and is
the only law making authority in United Kingdom. No other organ of the state has
legislative authority.
According to the concept of separation of powers, the functions of the three organs of
the state are separate and must be kept separate in order to prevent excessive powers
falling in the hands of one person or body. The legislative functions should be
confined to the legislative the implementation of the laws to the executive and the
adjudication to the judiciary.
In support of the declaratory theory it can be said that there will be very few occasions
today where the courts will face a problem without any guidance from one of the
sources of law.
Courts, however, according to some jurists are constantly involved in creating the law,
at least in the narrow sense.
First while statutes might be law, they are silent and ineffective. It is the application of
statutes which turns creatures of paper into things which have social effects.
The second way in which judges make law in the narrower sense is by interpretation
of statutes; the judicial power to make law in interpreting rules is something that is
inherent in the nature of decision making.
However, the controversial issue which critics of the declaratory theory assert is that
judges have a greater role of law making then merely turning statutes into things or
interpreting statutes. It is asserted that judges make law in the wider sense in three
ways.
Firstly, judges extend and modify existing rules to apply them to new situations and
this re-interpretation is wider than merely applying existing law. In 1991 the House of
Lords in R v R overturned the centuries old rule that there could not be rape within
marriage, this re-interpretation can be truly said to be law making.
Secondly, the critics of the declaratory theory assert that judges can develop the law
and create exceptions of existing principles to such an extent that it can be said to be
law making. An example often sited to illustrate this law making is the principle of
promissory estoppel developed by Lord Denning as an exception to the Pinnel's case
which was like creating new law.
The third argument put forward in support of review that judges do create law is that a
judge may be faced with a situation where he cannot find a solution in any of the
existing sources. Here the judge cannot say that he cannot settle the dispute because
there is no law. He cannot ask the parties to go to the Parliament and hare a law
enacted first and then come to him. In Gouriet, Lord Denning said that the law lies in
the breast of the judges and in such a situation the judges have to say what the law is.
Considerable controversy still remains as to whether judges can make law. Do they
have residual power or not? There is no doubt that the judges do not make law like the
Parliament out of thin air but can they fill the gaps? For Dworkin the law is never
incomplete and so there are no gaps to fill, judges never make law. On the other hand
for Hart these can be situations where the law is incomplete and therefore judges have
to fill the gap through the residual power and create law.
Lord Red Cliff previously stated “…there was a mare sterile controversy them that
upon the question whether judge makes law, of course he does how can be help it?”
