Introduction
The question of whether judges make law in the United Kingdom (UK) is a fundamental issue in legal studies, touching on the separation of powers, the role of the judiciary, and the nature of the common law system. Unlike codified legal systems where legislation is the primary source of law, the UK operates under an uncodified constitution, relying heavily on judicial precedents through the doctrine of stare decisis. This essay explores the extent to which judges create law rather than merely interpret it, examining the mechanisms of judicial law-making, the limitations imposed by parliamentary sovereignty, and the implications for the legal system. By considering key arguments, historical developments, and landmark cases, this discussion will demonstrate that, while judges do play a significant role in shaping the law, their law-making powers are constrained by constitutional principles and legislative authority. The essay will first outline the concept of judicial precedent, then evaluate the scope of judicial creativity, and finally assess the tension between judicial and parliamentary roles in law-making.
Judicial Precedent and the Doctrine of Stare Decisis
Central to the argument that judges make law in the UK is the doctrine of stare decisis, which translates as ‘to stand by decisions.’ This principle mandates that lower courts follow the rulings of higher courts in similar cases, creating a binding precedent that shapes future legal outcomes. As Hart (1961) notes, the common law system enables judges to develop legal principles incrementally through case law, effectively creating rules where none previously existed. For instance, in the landmark case of Donoghue v Stevenson [1932] AC 562, Lord Atkin established the ‘neighbour principle,’ laying the foundation for modern negligence law. Prior to this decision, there was no clear legal duty of care in such circumstances; thus, the judiciary effectively created a new legal standard.
However, the extent to which this constitutes ‘making law’ is debatable. While judges establish binding rules through precedent, their decisions are typically rooted in existing legal principles or statutes, suggesting a process of interpretation rather than outright creation. Moreover, the hierarchical structure of the courts limits lower judges’ ability to deviate from established precedents, reinforcing the notion that judicial law-making is not entirely discretionary. Indeed, as Denning (1979) argues, while judges adapt the law to contemporary needs, they do so within a constrained framework of prior decisions and legislative intent. This balance between continuity and adaptation is a defining feature of the UK’s common law system, highlighting the nuanced role of judges in legal development.
The Scope of Judicial Creativity
Beyond precedent, judges exercise creativity in interpreting ambiguous statutes or addressing gaps in the law, arguably engaging in a form of law-making. Statutory interpretation often requires judges to clarify vague or outdated legislation, as seen in the case of R v R [1991] 4 All ER 481, where the House of Lords abolished the longstanding marital rape exemption. Prior to this ruling, a husband could not be prosecuted for raping his wife due to an outdated common law principle. By overturning this, the judiciary effectively created a new legal norm, aligning the law with modern societal values. Such decisions demonstrate how judges can fill legal vacuoles or adapt the law to changing circumstances, particularly when Parliament has not addressed an issue.
Furthermore, in cases involving human rights, the judiciary has played a transformative role since the enactment of the Human Rights Act 1998 (HRA). Under Section 3 of the HRA, judges are required to interpret legislation in a way that is compatible with the European Convention on Human Rights (ECHR), sometimes leading to significant shifts in legal interpretation. For example, in Ghaidan v Godin-Mendoza [2004] UKHL 30, the House of Lords reinterpreted the Rent Act 1977 to extend succession rights to same-sex partners, effectively broadening the scope of the statute beyond its original intent. While this could be seen as judicial law-making, it is arguably a mandated interpretive duty under the HRA rather than an independent act of creation. Thus, while judicial creativity is evident, it frequently operates within legislative or constitutional boundaries.
Parliamentary Sovereignty and Judicial Constraints
A critical counterargument to the notion that judges make law is the principle of parliamentary sovereignty, which holds that Parliament is the supreme law-making authority in the UK. As Dicey (1885) famously articulated, Parliament can make or unmake any law, and no body, including the judiciary, can override its enactments. This principle places clear limits on judicial power, as judges cannot strike down statutes, even if they conflict with perceived notions of justice or human rights. For instance, while the judiciary may issue a declaration of incompatibility under Section 4 of the HRA, as in A v Secretary of State for the Home Department [2004] UKHL 56, such declarations do not invalidate the law; they merely signal the need for parliamentary action. This reinforces the subordinate role of judges in the UK legal system.
Moreover, the ability of judges to ‘make law’ through precedent can be curtailed by legislative intervention. If Parliament disagrees with a judicial ruling, it can enact legislation to overrule it, as occurred with the Compensation Act 2006, which clarified aspects of negligence law following judicial decisions perceived as overly expansive. Therefore, while judges contribute to the development of law, their role is ultimately subject to parliamentary oversight, suggesting that their law-making power is neither absolute nor independent. This tension between judicial innovation and legislative supremacy underscores the collaborative nature of law-making in the UK, where judges play a significant, though not dominant, role.
Conclusion
In conclusion, the assertion that judges make law in the UK holds considerable merit, particularly through the mechanisms of judicial precedent and statutory interpretation. Landmark cases such as Donoghue v Stevenson and R v R illustrate how judges can establish new legal principles or adapt existing ones to reflect societal changes, demonstrating a degree of law-making capability. However, this power is not unfettered; parliamentary sovereignty ensures that judges operate within a framework defined by legislation, and their decisions can be overridden by statute. Furthermore, much of what appears as judicial law-making can be viewed as interpretation or gap-filling, rather than the creation of law from scratch. The implications of this dynamic are significant, as it highlights the delicate balance between judicial innovation and democratic accountability in the UK’s uncodified constitutional system. Ultimately, while judges undoubtedly shape the law, their role remains secondary to Parliament, reflecting the collaborative and evolving nature of the legal landscape.
References
- Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. Macmillan.
- Denning, A.T. (1979) The Discipline of Law. Butterworths.
- Hart, H.L.A. (1961) The Concept of Law. Oxford University Press.
