Introduction
The question of whether judges make the law or merely interpret it lies at the heart of legal theory and practice, particularly within the context of the UK’s uncodified constitution. This debate touches on fundamental principles of judicial power, the separation of powers, and the role of precedent in shaping legal outcomes. In a system rooted in parliamentary sovereignty, the traditional view holds that Parliament makes law, while judges interpret and apply it. However, the reality is often more nuanced, as judges, through their decisions, can influence legal development in ways that resemble law-making. This essay explores the extent to which judges in the UK interpret or create law, examining the doctrine of precedent, statutory interpretation, and the evolving role of judicial discretion. By considering both theoretical perspectives and practical examples, it aims to provide a balanced analysis of this complex issue, ultimately arguing that while judges primarily interpret the law, their role often involves elements of law-making, particularly in areas of ambiguity or social change.
The Traditional View: Judges as Interpreters of Law
At the core of the UK legal system is the principle of parliamentary sovereignty, which asserts that Parliament is the supreme law-making authority (Dicey, 1885). Under this framework, judges are seen as interpreters of the law rather than creators of it. Their primary role is to apply statutes enacted by Parliament and to follow precedents established by higher courts under the doctrine of stare decisis, meaning to stand by decisions. This ensures consistency and predictability in the legal system, as lower courts are bound by the rulings of superior courts, such as the Supreme Court (formerly the House of Lords).
Statutory interpretation is a key mechanism through which judges fulfil their interpretive role. When faced with unclear or ambiguous legislation, judges employ established rules—literal, golden, and mischief rules—to discern Parliament’s intent (Cross, 1976). For instance, the literal rule prioritises the plain meaning of the text, as seen in cases like Whiteley v Chappell (1868), where the court strictly interpreted the wording of a statute, even if the outcome seemed absurd. Similarly, the golden rule allows judges to avoid absurdities, while the mischief rule seeks to address the problem Parliament intended to remedy. These tools reinforce the notion that judges do not make law but rather uncover the meaning embedded in legislation.
Furthermore, the judiciary’s adherence to precedent limits their ability to create law independently. Decisions in landmark cases, such as Donoghue v Stevenson (1932), which established the modern law of negligence, are often framed as discovering existing principles rather than inventing new ones. This perspective aligns with the declaratory theory of law, historically associated with Sir Edward Coke, which posits that judges merely declare what the common law has always been (Holdsworth, 1938). Therefore, in theory, judges interpret and apply pre-existing legal principles rather than crafting new rules.
Judicial Creativity: Judges as Quasi-Lawmakers
Despite the traditional view, there is substantial evidence to suggest that judges engage in law-making, particularly when faced with gaps in legislation or societal changes that demand legal adaptation. The doctrine of precedent itself allows judges to develop the law incrementally through their rulings. For example, in *R v R* (1991), the House of Lords abolished the long-standing marital rape exemption, effectively creating a new legal position by overturning centuries of common law. While this could be seen as interpretation, it arguably reflects a significant shift akin to law-making, as it responded to evolving social norms rather than explicit parliamentary intent.
Moreover, statutory interpretation often involves a degree of creativity, especially when legislation is vague or outdated. The purposive approach, increasingly adopted following the UK’s historical engagement with European Union law, allows judges to consider the broader purpose of legislation, sometimes extending beyond its literal wording (Steyn, 1997). A notable example is Pepper v Hart (1992), where the court permitted reference to Hansard (parliamentary debates) to clarify legislative intent, demonstrating judicial willingness to adapt interpretive methods in ways that can shape legal outcomes. This suggests that interpretation and law-making are not always distinct; rather, they can overlap when judges address ambiguities or modernise the law.
Additionally, in areas where Parliament has not legislated, such as much of the common law, judges have historically played a formative role. Legal principles governing contract, tort, and equity have largely been developed through judicial decisions over centuries. While some argue this is merely declaring existing law, the reality—especially in novel cases—often involves judges establishing new rules to address unprecedented issues, as seen in the development of privacy law following Campbell v MGN Ltd (2004). Thus, judicial decision-making frequently entails a creative element that resembles law-making.
The Limits and Constraints on Judicial Law-Making
While judges may engage in law-making to some extent, their scope to do so is constrained by institutional and constitutional factors. The principle of separation of powers dictates that law-making is primarily the domain of the legislature, with judges bound by parliamentary statutes (Bradley and Ewing, 2011). If a judicial decision oversteps perceived boundaries, Parliament can—and often does—intervene by passing corrective legislation. For instance, following judicial rulings on assisted dying, such as in *R (Nicklinson) v Ministry of Justice* (2014), Parliament has repeatedly debated and rejected changes to the law, underscoring its ultimate authority.
Moreover, the hierarchical nature of precedent limits judicial creativity. Lower court judges are strictly bound by higher court decisions, and even the Supreme Court, while able to depart from its own precedents since 1966, does so sparingly to maintain legal certainty (Practice Statement, 1966). This restraint reflects an awareness of the judiciary’s subordinate role in law-making compared to Parliament. Therefore, while judges may shape the law in specific contexts, their ability to do so is neither unlimited nor equivalent to parliamentary authority.
Conclusion
In conclusion, the question of whether judges make or interpret the law reveals a complex interplay between their formal role and practical influence within the UK legal system. On one hand, the traditional view—rooted in parliamentary sovereignty and the declaratory theory—emphasises that judges interpret and apply the law as created by Parliament or embedded in precedent. Statutory interpretation and adherence to stare decisis reinforce this position. On the other hand, judicial decisions often involve creativity, particularly in areas of ambiguity, social change, or legal gaps, as evidenced by cases like *R v R* and the development of common law principles. However, such law-making is constrained by constitutional principles, parliamentary oversight, and the judiciary’s own commitment to consistency. Ultimately, while judges primarily interpret the law, their role frequently encompasses elements of law-making, especially when responding to novel issues or societal shifts. This duality underscores the dynamic nature of the judicial function and raises ongoing questions about the balance of power between the judiciary and legislature in shaping the legal landscape.
References
- Bradley, A.W. and Ewing, K.D. (2011) Constitutional and Administrative Law. 15th edn. Pearson Education.
- Cross, R. (1976) Statutory Interpretation. Butterworths.
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- Holdsworth, W.S. (1938) A History of English Law. Methuen & Co.
- Steyn, Lord (1997) ‘The Weakest and Least Dangerous Department of Government’, Public Law, pp. 77-95.
