Introduction
The role of the judiciary within the English legal system is a subject of continuous debate. One fundamental question is whether judges are merely legal mechanics who apply the existing rules found in statutes and precedent, or whether they possess a creative function, shaping and developing the law. The traditional view supports the former, suggesting judges declare rather than create law. However, an examination of the common law and the process of statutory interpretation suggests a more active, legislative role. This essay will explore these competing views and argue that while judges are constrained by constitutional principles, they inevitably engage in a degree of law-making.
The Declaratory Theory of Law
The classic position is that judges do not make law. This is known as the declaratory theory, most famously articulated by William Blackstone, who stated that judges are ‘the depositories of the law… the living oracles, who must decide in all cases of doubt’ (Wacks, 2020). According to this view, the law already exists, and the judge's task is simply to find and declare it. This theory aligns with the constitutional principle of the separation of powers, which holds that Parliament makes the law, the executive implements it, and the judiciary applies it. To suggest judges create law would be to usurp the legislative function of Parliament, which is sovereign. This perspective provides a framework of certainty and stability, as it implies that the law is a fixed body of rules that is not subject to the individual discretion of judges (Slapper and Kelly, 2017). The role of the judge is therefore seen as retrospective, declaring what the law has always been, not creating a new rule for the future.
The Reality of Judicial Law-Making
In practice, the declaratory theory appears to be more of a constitutional ideal than a reality. The development of the common law is the clearest evidence of judicial creativity. Entire areas of English law, such as the law of negligence, have been developed almost exclusively by judges. The landmark case of Donoghue v Stevenson [1932] AC 562 is a prime example. Here, the House of Lords established the ‘neighbour principle’, creating a general duty of care where one did not previously exist in such a clear form. This was not a declaration of existing law but a significant extension of it to fit new social and industrial conditions.
Furthermore, judges create law when interpreting statutes. While Parliament writes the legislation, the wording can be ambiguous, outdated, or fail to cover a specific situation. In these ‘hard cases’, judges must determine Parliament’s intention, a process that inherently involves a degree of choice and creativity (Elliott and Quinn, 2020). A clear example of this is the case of R v R (Marital Exemption) [1992] 1 AC 599. The House of Lords abolished a 250-year-old common law rule that a husband could not be criminally liable for raping his wife. Their Lordships decided that the concept was no longer acceptable in modern society and that Parliament would have legislated to abolish it if the matter had been brought to its attention. This decision effectively created a new criminal liability, a function typically reserved for Parliament.
Constraints on Judicial Power
While it is evident that judges do create law, their power to do so is not unlimited. The doctrine of binding precedent, or stare decisis, means that lower courts must follow the decisions of higher courts, and the Supreme Court is generally bound by its own past decisions, although it can depart from them when it appears right to do so. This ensures a degree of consistency and predictability. The most significant constraint, however, is the sovereignty of Parliament. Parliament can override any common law rule or judicial decision through legislation (Slapper and Kelly, 2017). If Parliament disagrees with a judicial development, it can pass a new Act to clarify or change the law, thereby re-asserting its legislative supremacy.
Conclusion
In conclusion, the notion that judges simply apply the law as written is a constitutional fiction. As Lord Reid famously commented, it is a ‘fairy tale’ to think that judges do not make law. Through the development of the common law and the necessary interpretation of statutes, the judiciary plays a vital and creative role in shaping the legal landscape. Cases such as Donoghue v Stevenson and R v R (Marital Exemption) demonstrate that judges can and do make significant changes to the law. However, this power is not absolute. It is exercised within the important constitutional constraints of the doctrine of precedent and the ultimate sovereignty of Parliament. Therefore, the judicial function is best understood as a partnership, where judges develop the law interstitially, subject to Parliament’s final authority.
References
Elliott, C. and Quinn, F. (2020) English Legal System. 21st edn. Harlow: Pearson.
Slapper, G. and Kelly, D. (2017) The English Legal System. 18th edn. Abingdon: Routledge.
Wacks, R. (2020) Understanding Jurisprudence: An Introduction to Legal Theory. 6th edn. Oxford: Oxford University Press.
