Judges Make Law, Particularly Through the Development of Common Law and Statutory Interpretation, Acting as More Than Mere Declarers of Existing Rules. While Adhering to Stare Decisis, They Fill Gaps, Adapt Principles to New Scenarios, and Create New Legal Principles, Effectively Creating Law as Argued by Radcliffe

Introduction

In the study of English law, a central debate revolves around the role of judges: do they merely declare existing law, or do they actively make it? This essay explores this question using the IRAC method (Issue, Rules/Principles, Application, Conclusion), drawing on key legal theories and cases. It argues that judges engage in law-making, particularly through common law development and statutory interpretation, while constrained by precedent. This perspective is informed by historical and modern views, highlighting the judiciary’s creative function in adapting law to contemporary needs. The discussion is relevant for understanding the dynamic nature of the common law system in the UK.

Issue

The core issue is whether judges make law through their rulings or simply declare pre-existing law, as suggested in Willis v Baddeley [1892] 2 QB 324. In that case, Lord Esher famously stated that judges “do not make the law,” implying a purely declaratory role (Willis v Baddeley [1892]). This raises questions about judicial creativity versus adherence to established rules, especially in novel scenarios where no clear statute or precedent applies. Arguably, this debate is not merely theoretical; it affects how we view the separation of powers, with judges potentially encroaching on parliamentary sovereignty. For instance, when faced with gaps in legislation, judges must decide cases, which inevitably shapes legal principles. This issue is particularly pertinent in common law jurisdictions like the UK, where judicial decisions form binding precedents.

Rules/Principles

Two main theories frame this debate: the declaratory theory and the modern view of judicial law-making. The declaratory theory posits that judges only discover and apply existing law, without creating it. This is exemplified by Lord Esher’s assertion in Willis v Baddeley [1892] 2 QB 324, where he described judges as mere interpreters of timeless legal principles (Reid, 1972).¹ In contrast, the modern view argues that judges create law, especially in unresolved areas or when interpreting statutes. Lord Radcliffe critiqued the declaratory theory as “sterile,” noting that applying law to new facts inherently involves law-making (Radcliffe, 1961).² Furthermore, the doctrine of stare decisis—Latin for “to stand by things decided”—requires lower courts to follow higher courts’ precedents, empowering judges to influence future law (Paterson, 1982). Statutory interpretation also plays a role; rules like the literal, golden, and mischief approaches allow judges to clarify ambiguous legislation, effectively extending its scope (Bell and Engle, 1995).

Application

Applying these principles, Lord Esher’s view in Willis v Baddeley appears formalist and outdated. In practice, judges fill legal gaps through common law development. For example, in Donoghue v Stevenson [1932] AC 562, the House of Lords established the modern negligence principle, creating a new duty of care that bound future cases—clear judicial law-making (Paterson, 1982). Similarly, in statutory interpretation, judges adapt laws to new contexts. In R v R [1991] 4 All ER 481, the House of Lords interpreted the Sexual Offences Act 1956 to criminalise marital rape, overturning centuries-old assumptions and effectively creating new law (Bell and Engle, 1995).³ Lord Radcliffe’s argument underscores this: debates over whether judges “make” law are unproductive because defining law’s application to novel facts is creative (Radcliffe, 1961). However, stare decisis limits this, as seen in Practice Statement [1966] 3 All ER 77, where the House of Lords affirmed its ability to depart from precedents only in exceptional cases. Therefore, while constrained, judges’ decisions in ambiguous or unprecedented situations constitute law-making, shaping legal evolution.

Conclusion

In conclusion, judges do make law, transcending the declaratory role implied in Willis v Baddeley. Through common law precedents and interpretive techniques, they adapt principles to modern scenarios, as Radcliffe argued, while respecting stare decisis. This creative function ensures the law remains relevant, though it must balance against parliamentary supremacy. The implications are significant: acknowledging judicial law-making enhances our understanding of the UK’s unwritten constitution and the judiciary’s role in justice. Ultimately, this balanced approach prevents legal stagnation, fostering a responsive legal system.

¹ Note: Willis v Baddeley involved local government powers, but Esher’s comment on judicial role is widely cited in legal theory discussions.
² Radcliffe’s views are from his lectures on jurisprudence.
³ This case marked a pivotal shift in family law.

References

• Bell, J. and Engle, G. (1995) Cross: Statutory Interpretation. Butterworths.
• Paterson, A. (1982) The Law Lords. Macmillan.
• Radcliffe, C. J. (1961) The Law and Its Compass. Faber and Faber.
• Reid, Lord (1972) ‘The Judge as Law Maker’, Journal of the Society of Public Teachers of Law, 12, pp. 22-29.