Introduction
The role of judges in the legal system has long been a subject of debate, particularly regarding whether they do—and whether they should—make law. In the context of the UK legal system, which is rooted in the doctrine of parliamentary sovereignty and the principle of stare decisis, the notion of judicial law-making raises complex questions about the separation of powers and the legitimate scope of judicial authority. This essay critically examines the assertion that “there can be no doubt that judges do, and that judges should, make law.” It will first explore the extent to which judges make law through precedent and statutory interpretation. It will then evaluate whether this role is normatively desirable, considering arguments both for and against judicial law-making. While the essay acknowledges the practical reality of judicial contributions to law-making, it also highlights limitations and concerns surrounding this function. Ultimately, it argues that while judges undeniably play a role in shaping the law, the extent to which they should do so remains contentious and must be balanced against democratic principles.
Judges as Law-Makers: The Reality in Practice
It is undeniable that judges make law in the UK through the doctrine of precedent, which forms the cornerstone of the common law system. The principle of stare decisis ensures that decisions made by higher courts are binding on lower courts, thereby creating a body of law through judicial rulings. Landmark cases such as Donoghue v Stevenson (1932), which established the modern law of negligence, illustrate how judicial decisions can create legal principles that shape future cases (MacCormick, 1987). Indeed, the creation of the ‘neighbour principle’ by Lord Atkin in this case demonstrates how judges can fill gaps in the law where Parliament has not legislated, effectively making law in the process.
Moreover, judges contribute to law-making through statutory interpretation. When legislation is ambiguous or incomplete, courts must interpret its meaning, often setting precedents that influence how the law is applied. For instance, in R v R (1991), the House of Lords ruled that marital rape was a criminal offence, overturning centuries of common law precedent that had previously excluded such acts from prosecution. This decision arguably created new legal norms by extending the scope of existing criminal law, highlighting the judiciary’s capacity to adapt the law to contemporary societal values (Loveland, 2018). Thus, through both precedent and interpretation, there can be little doubt that judges actively participate in law-making.
However, this role is not without constraints. The UK’s unwritten constitution and the principle of parliamentary sovereignty mean that judges are, in theory, subordinate to Parliament. Statutes override conflicting common law principles, and judges lack the power to strike down legislation. This limit suggests that while judges do make law, their role is circumscribed and often reactive rather than proactive. Therefore, while their law-making function is evident, it operates within a framework that prioritises legislative supremacy.
Should Judges Make Law? Arguments in Favour
Having established that judges do make law, the question of whether they should do so is more contentious. Proponents argue that judicial law-making is both necessary and beneficial, particularly in a rapidly changing society. Legislation often lags behind societal developments, leaving gaps that judges are well-positioned to address. For example, the judiciary’s role in adapting the law to new technologies or social norms—such as recognising rights in cases involving digital privacy—demonstrates their capacity to ensure the law remains relevant (Beatson, 2008). Without this flexibility, the legal system risks becoming outdated or unresponsive to modern challenges.
Additionally, judges, by virtue of their expertise and independence, are arguably suited to refine and clarify the law. Through reasoned judgments, they can provide nuanced interpretations that enhance legal certainty and coherence. The incremental development of the common law through cases like Caparo Industries plc v Dickman (1990), which refined the test for duty of care in negligence, exemplifies how judicial law-making can contribute to a more robust legal framework (Barnett, 2017). Supporters of judicial law-making thus argue that it serves as a necessary complement to parliamentary legislation, filling gaps and ensuring justice in individual cases.
Arguments Against Judicial Law-Making
Conversely, critics contend that judicial law-making undermines democratic principles and the separation of powers. In the UK, Parliament is the primary law-making body, elected by the public to represent their will. When judges make law, they risk overstepping their constitutional role, imposing personal or ideological views without democratic accountability. Lord Radcliffe (1961) famously argued that judges should exercise restraint, as their role is to interpret, not create, law. This perspective warns against the dangers of judicial activism, where unelected judges may shape policy in ways that conflict with the electorate’s intentions.
Furthermore, there are practical concerns about the scope and consistency of judicial law-making. Unlike legislation, which is drafted through a deliberative and consultative process, judicial decisions are often made in the context of specific cases, potentially leading to piecemeal or inconsistent developments in the law. For instance, the incremental nature of common law can result in uncertainty, as seen in evolving areas such as privacy law, where judicial rulings have struggled to establish clear principles (Loveland, 2018). Critics thus argue that law-making should primarily remain the preserve of Parliament, with judges limited to interpretation within strict boundaries.
Striking a Balance
The debate over whether judges should make law ultimately hinges on finding a balance between flexibility and democratic legitimacy. While it is clear that judges do contribute to law-making, their role should arguably be confined to areas where parliamentary inaction or ambiguity necessitates judicial intervention. Mechanisms such as judicial restraint and deference to Parliament can help ensure that judges do not encroach on legislative authority. At the same time, their ability to adapt the law to societal changes remains a valuable tool, provided it is exercised with caution and transparency. This delicate balance is essential to maintaining public confidence in both the judiciary and the democratic process.
Conclusion
In conclusion, there is little doubt that judges in the UK do make law through the doctrines of precedent and statutory interpretation, as evidenced by landmark cases and evolving legal principles. However, whether they should make law is a more nuanced question. While judicial law-making offers flexibility and ensures the law remains relevant, it also raises concerns about democratic accountability and the separation of powers. This essay has argued that while judges inevitably play a role in shaping the law, this function must be carefully limited to avoid undermining parliamentary sovereignty. The implications of this debate are significant, as they touch on fundamental questions of governance and justice. Ultimately, a balanced approach—one that recognises the practical necessity of judicial contributions while prioritising democratic principles—remains crucial to the integrity of the UK legal system.
References
- Barnett, H. (2017) Constitutional & Administrative Law. 12th edn. Routledge.
- Beatson, J. (2008) Reforming an Unwritten Constitution. Law Quarterly Review, 124, pp. 48-71.
- Loveland, I. (2018) Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction. 8th edn. Oxford University Press.
- MacCormick, N. (1987) Legal Reasoning and Legal Theory. Clarendon Press.
- Radcliffe, Lord. (1961) The Lawyer and His Times. In: Sutherland, A. (ed.) The Path of the Law from 1967. Harvard University Press.
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