When a court is faced with a statute that is unclear, or a common law principle that no longer reflects societal values, must judges restrict themselves to the established letter of the law, or can they develop legal rules to address new challenges? In the United Kingdom, this question highlights a fundamental constitutional tension between the legislative supremacy of Parliament and the interpretive function of the judiciary. The conventional view, often termed legal formalism, suggests that judges merely declare the law that already exists. Yet this perspective is challenged by clear instances of judicial creativity, raising a concern that is central to jurisprudence: at what point does the interpretation of law become its creation? This essay argues that while judges operate within significant constitutional constraints, the process of adjudication, particularly in ambiguous cases, inherently involves a creative element that amounts to a limited form of law-making.
The Formalist Position and the Separation of Powers
The traditional argument against judicial law-making is rooted in the doctrine of the separation of powers. According to this formalist view, the distinct constitutional roles are clear: Parliament legislates, and the judiciary interprets and applies that legislation. Proponents of this model argue that for judges to create new law would be to usurp the role of the democratically elected legislature, undermining legal certainty and democratic legitimacy (Endicott, 2012). This is often called the ‘declaratory theory’ of law, which holds that judges do not make law but simply discover and declare it. This idea suggests that the common law is a complete and coherent system, and the judicial task is merely to reveal its contents in new factual situations.
However, this rigid view has been criticised as an unrealistic description of the judicial process. The legal philosopher H.L.A. Hart acknowledged that while many legal rules have a ‘core of certainty’ where their application is straightforward, there is also a ‘penumbra of doubt’ where the rules are indeterminate (Hart, 2012). In these ‘hard cases’, Hart concedes that judges must exercise discretion, effectively choosing an outcome and thereby creating new law to fill the gaps. Therefore, even from a perspective that prioritises rules, the idea that judges *never* create law appears difficult to sustain when faced with the ambiguity inherent in language and legislation.
Judicial Creativity in Practice
In contrast to the formalist model, there is substantial evidence of judges actively developing and changing the law. The late Lord Reid, a prominent Law Lord, famously dismissed the declaratory theory as a ‘fairy tale’, stating that ‘we must accept the fact that for better or for worse judges do make law’ (Reid, 1972). This creative function is most visible in the development of the common law. A clear example can be found in the landmark case of *R v R (Marital Exemption)* [1992] 1 AC 599. In this case, the House of Lords abolished a centuries-old common law rule that a husband could not be held guilty of raping his wife. The court recognised that this rule was anachronistic and offensive to modern sensibilities regarding the status of women. Rather than waiting for Parliament to legislate, the judges proactively changed the law, demonstrating a clear instance of judicial law-making to reflect societal evolution.
Ronald Dworkin offered a more nuanced theory, suggesting that even in hard cases, judges are not legislating but are instead seeking the ‘one right answer’ by applying underlying legal principles (Dworkin, 1986). For Dworkin, judges are not exercising a quasi-legislative discretion but are engaged in a process of constructive interpretation to find the solution that best fits with the existing body of law. While this theory attempts to constrain judicial power, the process of identifying and weighing competing principles still involves significant judicial choice and can be seen as a form of creative legal development, even if it is not described as pure invention.
In conclusion, the proposition that judges simply interpret the law as written is an inadequate description of the judicial function. While the formalist view correctly highlights the constitutional importance of parliamentary sovereignty, it fails to account for the reality of legal ambiguity and the necessary role of judges in resolving it. As demonstrated by Hart’s theory of the penumbra and cases such as *R v R*, judges possess a capacity for creativity, especially in developing the common law to align with contemporary justice. Their law-making power is not equivalent to that of Parliament; it is interstitial and exercised within the framework of existing legal principles. Nevertheless, to deny this creative function is to ignore a vital aspect of how the common law system operates and evolves.
References
- Dworkin, R. (1986) Law’s Empire. Harvard University Press.
- Endicott, T. (2012) ‘The Value of Vagueness’ in A. Marmor and S. Soames (eds), The Philosophical Foundations of Language in the Law. Oxford University Press.
- Hart, H.L.A. (2012) The Concept of Law. 3rd edn. Oxford University Press.
- Reid, J. (1972) ‘The Judge as Law Maker’. Journal of the Society of Public Teachers of Law, 12(1), pp. 22-29.
- R v R (Marital Exemption) [1992] 1 AC 599.
