Introduction
The constitutional role of the judiciary in the United Kingdom is a subject of ongoing debate. The traditional view, rooted in the doctrine of the separation of powers, is that judges are merely interpreters of the law, which is made by Parliament. This is known as the declaratory theory, which posits that judges do not create law but simply declare what it has always been. However, this perspective is widely regarded as a constitutional fiction that does not accurately reflect the judicial function in practice (Slapper and Kelly, 2017). This essay will argue that while judges are constrained by legal and constitutional principles, they inevitably and actively engage in a form of law-making. It will first outline the declaratory theory before presenting evidence of judicial creativity through the development of common law and the interpretation of statutes.
The Declaratory Theory
The classic articulation of the judicial role is that of a law-applier, not a law-maker. William Blackstone, a prominent eighteenth-century jurist, described judges as "the living oracles" of the law, whose role was to discover and declare the principles of common law that already existed (Blackstone, 1765). This view was supported by judges themselves; for instance, Lord Esher in Willis & Co v Baddeley [1892] 2 QB 324 stated that "There is in fact no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable." The theory serves an important constitutional purpose by reinforcing parliamentary sovereignty and providing a basis for judicial legitimacy, as unelected judges are not seen to be usurping the legislative function of a democratically elected Parliament.
Evidence of Judicial Law-Making
Despite the appeal of the declaratory theory, there is significant evidence that judges do create law. The development of the common law is the most obvious example. The entire modern law of negligence, for instance, originates from the landmark decision in Donoghue v Stevenson [1932] AC 562. In this case, the House of Lords established the ‘neighbour principle’, creating a new area of liability where none had previously been clearly defined. Lord Atkin was not merely declaring existing law but was formulating a new, general principle to be applied in future cases.
A more striking example can be found in R v R (Marital Exemption) [1992] 1 AC 599, where the House of Lords abolished a husband’s 250-year-old immunity from being criminally liable for raping his wife. The court declared that the long-standing common law principle was no longer acceptable in modern society. This was not a discovery of existing law but a conscious decision to change it in response to evolving social values, a function that looks very similar to legislation (Allen, 2019).
Furthermore, judicial creativity is evident in the process of statutory interpretation. While judges are tasked with applying Acts of Parliament, the inherent ambiguity in language often requires them to make choices that shape the law's meaning. The development of the purposive approach to interpretation, particularly following Pepper v Hart [1993] AC 593, allows judges to consult parliamentary debates to ascertain the purpose behind legislation. More significantly, the Human Rights Act 1998, under section 3, requires courts to read and give effect to legislation in a way that is compatible with Convention rights. In Ghaidan v Godin-Mendoza [2004] UKHL 30, the House of Lords interpreted the Rent Act 1977, which gave rights to a surviving spouse living with the original tenant, to include surviving same-sex partners. This was achieved by reading words into the statute, a process which Lord Rodger acknowledged "looks like legislation" (para 110).
Conclusion
In conclusion, the assertion that judges simply apply the law is an oversimplification that does not withstand scrutiny. While the declaratory theory provides a formal constitutional justification for the judicial role, the reality is more complex. Through the development of the common law and the interpretation of statutes, judges perform a creative function. Landmark cases like Donoghue v Stevenson and R v R demonstrate their power to create and abolish legal principles. However, this law-making power is not unlimited. It is exercised interstitially, filling gaps in the law, and is constrained by the doctrine of precedent and the ultimate supremacy of Parliament, which can reverse judicial decisions through legislation. Therefore, it is more accurate to view judges as both applying existing rules and, where necessary, creating new ones within a framework of legal and constitutional constraints.
References
Allen, M. (2019) Elliott and Quinn's English Legal System. 20th edn. Pearson.
Blackstone, W. (1765) Commentaries on the Laws of England. Book 1. Clarendon Press.
Slapper, G. and Kelly, D. (2017) The English Legal System. 18th edn. Routledge.
Donoghue v Stevenson [1932] AC 562
Ghaidan v Godin-Mendoza [2004] UKHL 30
Pepper v Hart [1993] AC 593
R v R (Marital Exemption) [1992] 1 AC 599
Willis & Co v Baddeley [1892] 2 QB 324
