Introduction
The question of the judicial role is a fundamental debate within the English legal system. It centres on whether judges are merely ‘legal mechanics’ who discover and apply pre-existing law, or if they are active participants in the creation and development of law. The traditional view, known as the declaratory theory, posits that judges do not make law but simply declare it. However, a more modern and realistic perspective acknowledges a significant law-making function. This essay will argue that while the declaratory theory has historical roots, the evidence from the operation of the common law and statutory interpretation demonstrates that judges do, in fact, actively create law, albeit within significant constitutional constraints.
The Declaratory Theory
The classic view of the judicial function was articulated by Sir William Blackstone, who argued that judges are ‘the depositories of the laws; the living oracles, who must decide in all cases of doubt’ (Blackstone, 1765). According to this declaratory theory, the common law is a complete and timeless body of principles, and the judge's role is simply to find the correct principle and apply it to the facts of a case. This theory supports the constitutional principle of the separation of powers, which suggests that the legislature (Parliament) makes law, the executive (government) implements it, and the judiciary applies it. Adherence to this view suggests that judicial decisions are not subjective or political, but are objective discoveries of the existing law, which promotes legal certainty and legitimacy. However, this perspective has been widely criticised as being unrealistic. Lord Reid famously dismissed it as a ‘fairy tale’ in which ‘we all know that it is not true’ (Reid, 1972).
The Reality of Judicial Law-Making
In practice, judges perform a creative role in several ways. The most obvious area is the development of the common law. Many core areas of English law, such as the law of negligence and contract, have been developed almost entirely through judicial decisions on a case-by-case basis. The landmark case of Donoghue v Stevenson [1932] AC 562 provides a clear example. In this case, the House of Lords established the general principle of a duty of care owed to one's ‘neighbour’. This was not a declaration of an existing, settled rule but a significant creative step which established the foundation of the modern law of negligence. As Lord Devlin noted, judicial law-making is an inevitable consequence of the common law system: 'the common law is a living thing and can and should be developed by the judges' (Devlin, 1979).
Furthermore, judges also engage in a form of law-making when undertaking statutory interpretation. Although Parliament is the supreme law-maker, statutes are often drafted in general terms and may contain ambiguities or fail to provide for new situations. It falls to the judiciary to interpret the meaning of the legislation and apply it to specific facts. In doing so, judges effectively fill the gaps left by Parliament. While they are bound by the statutory text, their choice between different possible interpretations can have a profound effect on the law's application and can establish a precedent for future cases.
Constraints on the Judicial Role
Despite this creative function, it is important to recognise that judicial law-making is not unlimited. Judges operate within a strict institutional framework. The most significant constraint is the doctrine of binding precedent, or stare decisis, which requires courts to follow the decisions of higher courts in the hierarchy. This ensures consistency and predictability. Secondly, the principle of parliamentary sovereignty means that judges cannot overrule or ignore a clear and valid Act of Parliament. Where statute law and common law conflict, statute law will always prevail. Therefore, any judicial law-making is secondary to the ultimate authority of Parliament.
Conclusion
In conclusion, the notion that judges only declare the law is a fiction that does not align with the practical reality of the English legal system. Through the incremental development of the common law and the necessary act of interpreting statutes, judges actively participate in the creation of law. Landmark cases like Donoghue v Stevenson show that the common law evolves through judicial innovation, not just discovery. However, this power is not absolute. It is exercised cautiously and is subject to the important constitutional constraints of the doctrine of precedent and the sovereignty of Parliament. Therefore, while judges do not possess the same broad law-making powers as the legislature, they are far more than mere appliers of law; they are, within limits, its creators and developers.
References
Blackstone, W. (1765) Commentaries on the Laws of England. Clarendon Press.
Devlin, P. (1979) The Judge. Oxford University Press.
Donoghue v Stevenson [1932] AC 562.
Reid, J. (1972) ‘The Judge as Law Maker’, The Journal of the Society of Public Teachers of Law, 12(1), pp. 22-29.
