Introduction
The constitutional role of the judiciary in England and Wales is a subject of ongoing debate. The traditional view, rooted in the doctrine of the separation ofpowers, is that judges are merely interpreters of the law, which is made by Parliament. This is known as the declaratory theory. However, an alternative perspective argues that through the operation of the common law and the interpretation of statutes, judges inevitably and actively participate in the creation of law. This essay will argue that while judges operate under significant constraints, the notion that they simply apply the law is an oversimplification. The development of the common law provides clear evidence that judges do, in fact, create law, albeit in an incremental and reactive manner.
The Declaratory Theory
The classic articulation of the judicial function is the declaratory theory, most famously associated with Sir William Blackstone. According to this view, judges do not make law; they are ‘the depositories of the laws; the living oracles, who must decide in all cases of doubt’ (Blackstone, 1765). This theory suggests that the common law is a pre-existing body of principles, and the judge's role is simply to discover and declare the correct principle for the case before them. This perspective aligns with the principle of parliamentary sovereignty, which holds that Parliament is the supreme law-making body. If judges were seen to be creating law, it could be viewed as an illegitimate usurpation of the legislative function, undermining the democratic authority of Parliament. This theory provides a framework of certainty and upholds the idea that judges are neutral arbiters applying existing rules, rather than policy-makers.
Evidence of Judicial Law-Making
Despite the historical appeal of the declaratory theory, it is now widely regarded as a fiction. As Lord Reid commented, the idea that judges do not make law is a "fairy tale" (Reid, 1972). The evolution of the common law is replete with examples where judges have created new legal principles or radically altered existing ones. A prominent example is the development of the modern law of negligence, which originates from the landmark decision in Donoghue v Stevenson [1932] AC 562. Lord Atkin’s ‘neighbour principle’ was not a declaration of existing law but a novel formulation designed to provide a general principle for determining the existence of a duty of care.
A more striking example of judicial law-making can be found in criminal law. In R v R (Marital Exemption) [1992] 1 AC 599, the House of Lords abolished the centuries-old common law rule that a husband could not be criminally liable for raping his wife. The court recognised that this rule was anachronistic and offensive to modern societal values regarding the equality of partners in a marriage. By abolishing the exemption, the House of Lords effectively created a new criminal liability. This was not an act of interpretation but a deliberate change in the law to reflect social progress, a function often considered to be the preserve of Parliament.
Constraints on Judicial Law-Making
While it is evident that judges do create law, it is crucial to recognise that they do not do so in a vacuum. The judicial function is constrained by several important constitutional principles. The most significant is the doctrine of binding precedent, or stare decisis. This doctrine requires courts to follow the decisions of higher courts (and usually their own previous decisions), which ensures consistency and predictability. While the Supreme Court can depart from its own previous decisions, it does so only rarely and with caution.
Furthermore, judges are subordinate to Parliament. Where a statute is clear and applicable, the courts must apply it, even if the outcome is considered undesirable. Judicial law-making is therefore often described as ‘interstitial’; judges can fill the gaps left by Parliament, but they cannot override a clear expression of parliamentary will (Elliott and Thomas, 2020). Therefore, the creative role of the judiciary is primarily confined to the development of the common law and the interpretation of ambiguous statutory provisions.
Conclusion
In conclusion, the statement that judges simply apply the law as written is an inaccurate description of the judicial function in England and Wales. The declaratory theory, while constitutionally convenient, fails to account for the dynamic and evolving nature of the common law. Cases such as Donoghue v Stevenson and R v R demonstrate that senior judges have, at times, taken a proactive role in developing legal principles and adapting the law to new social realities. However, this creative power is not unlimited. It is carefully circumscribed by the doctrine of precedent and, most importantly, by the supremacy of Parliament. Judges are therefore best understood not as primary legislators, but as secondary lawmakers who operate within the framework established by statute and the existing body of case law.
References
- Blackstone, W. (1765) Commentaries on the Laws of England. Book 1, Chapter 2.
- Elliott, M. and Thomas, R. (2020) Public Law. 4th 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.
- Donoghue v Stevenson [1932] AC 562.
- R v R (Marital Exemption) [1992] 1 AC 599.
