Introduction
Lord Denning’s remark captures a long-standing tension within the common law tradition. On one view, judges merely declare pre-existing rules; on another, they actively shape legal principles through their decisions. This essay examines the extent to which judicial decisions constitute law-making. It first outlines the traditional declaratory theory, then analyses concrete instances of judicial creativity, considers institutional constraints that limit such creativity, and finally assesses the implications for democratic legitimacy. The discussion draws primarily on English authorities and scholarly commentary to evaluate whether judges legislate or merely interpret.
The Declaratory Theory and Its Persistence
The declaratory theory holds that judges do not create law but uncover principles already embedded within the common law. Blackstone famously described the judge as the “living oracle” who pronounces what the law has always been. This conception underpinned the doctrine of precedent and supported the constitutional separation between legislative and judicial functions. Even in the twentieth century, judges such as Lord Reid continued to invoke the theory publicly while privately acknowledging its limitations. The persistence of the declaratory stance is therefore partly rhetorical, designed to preserve the appearance of judicial neutrality and to avoid direct confrontation with parliamentary sovereignty.
Evidence of Judicial Law-Making in Practice
Despite the traditional rhetoric, appellate courts routinely develop new principles. In Donoghue v Stevenson [1932] AC 562, the House of Lords recognised a general duty of care in negligence, extending liability beyond contractual relationships. Lord Atkin’s neighbour principle was not derived from any statute or earlier precedent; it constituted an explicit policy choice about the appropriate scope of tortious responsibility. Similarly, in R v R [1992] 1 AC 599 the House abolished the marital rape immunity, holding that the common law could no longer countenance such an exemption. The decision overtly altered substantive criminal law. These cases illustrate that judges occasionally introduce novel rules that bind future litigants, thereby performing a legislative function on an incremental scale. The process is often described as interstitial legislation, filling gaps left by statute or adapting old rules to contemporary social conditions.
Institutional and Constitutional Constraints
Judicial law-making remains circumscribed. The doctrine of stare decisis requires courts to follow binding precedents, limiting the scope for radical departure. The Practice Statement of 1966 permitted the House of Lords (now Supreme Court) to depart from its own decisions only in limited circumstances, and the power has been exercised sparingly. Moreover, the principle of parliamentary sovereignty means that any judicial development can be overridden by legislation. The Human Rights Act 1998 further channels judicial creativity through the obligation to interpret statutes compatibly with Convention rights, yet section 4 declarations of incompatibility leave final reform to Parliament. These mechanisms ensure that judicial innovation operates within a framework ultimately controlled by the elected legislature. Consequently, while judges do make law, they do so within a narrowly defined space.
Implications for Legitimacy and Accountability
The recognition that judges make law raises questions of democratic accountability. Critics argue that unelected judges should refrain from controversial policy choices, such as those concerning end-of-life decisions or privacy rights against media intrusion. Defenders respond that the common law’s incremental, case-by-case method allows judges to respond to novel problems more flexibly than Parliament, which operates under severe time constraints. The requirement of reasoned judgments and the possibility of legislative correction provide a degree of transparency and accountability. Nevertheless, the extent of acceptable judicial creativity remains contested, particularly where social values are deeply divided. A balanced approach therefore recognises both the inevitability and the bounded character of judicial law-making.
Conclusion
Judicial decisions amount to law-making to a modest but significant degree. The declaratory theory continues to influence professional discourse, yet concrete developments in tort, criminal law and human rights demonstrate that judges regularly fashion new rules. Institutional doctrines and parliamentary supremacy nevertheless keep this creative function within defined limits. The continuing debate centres not on whether judges make law, but on how far that function may legitimately extend without undermining constitutional principles.
