The judiciary exercises its authority to resolve disputes and apply legal rules, which raises a fundamental question about its constitutional role. Legal formalism is the theory that judges apply legal rules to the facts of a case with little need for interpretation. Judicial activism, by contrast, suggests judges use their power to advance social or political goals. Scrutinising the conflict between the traditional declaratory theory of law and the evidence of judicial creativity, epitomised through landmark common law developments, will provide a supportive framework for arguing that judges do more than simply interpret pre-existing law. The idea that judges merely discover law has become outdated, with a more realistic view accepting a constrained, yet active, role in law-making.
The traditional view holds that judges do not make law but simply declare what it has always been. This is known as the declaratory theory, most famously articulated by William Blackstone, who described judges as ‘the living oracles’ of the law who are to ‘demolish the errors of a former rule’ rather than ‘pronounce a new law’ (Blackstone, 1765). This perspective reinforces the separation of powers, where Parliament legislates and the judiciary applies that legislation. If judges were seen to create law, it would challenge the principle of parliamentary sovereignty, suggesting they are acting as unelected lawmakers. This formalist approach promotes legal certainty and predictability, as it implies the law is a fixed and complete system waiting to be discovered.
On the contrary, a significant body of evidence suggests that the declaratory theory does not reflect reality. The development of the common law is itself a history of judicial law-making. This reality was acknowledged by Lord Reid, who stated that the idea judges do not make law is a ‘fairy tale’ that has been abandoned, and that ‘we do not believe in fairy tales any more’ (Reid, 1972). This creative function is clearly depicted in cases where judges have departed from long-established precedent to reflect changing social values. A prominent example is *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. Legally, the court overturned a common law rule that was considered ethically abhorrent by modern standards. This highlights that established common law is subject to judicial change as a result of evolving societal values, demonstrating a clear legislative function.
However, this judicial creativity is not without limits. Judges are constrained by the doctrine of precedent, which obliges them to follow the decisions of higher courts, and by the ultimate authority of Parliament, which can reverse judicial decisions through legislation. Some argue that judges operate in a middle ground, not as pure formalists but as interpreters with a creative duty in ‘hard cases’ where the law is uncertain. Ronald Dworkin argued that even in these cases, judges do not invent law but discover the correct legal answer by applying underlying legal principles (Dworkin, 1977). This indicates that the conflict between interpreting and creating law is not a simple choice between two extremes, as judges’ actions are guided by institutional rules and the existing body of law.
In conclusion, the judiciary’s role encompasses both interpretation and creation. While the formalist idea that judges only declare the law provides a clear constitutional model, it fails to account for the evolution of the common law. Cases like *R v R* show that judges actively shape the law, often to align it with contemporary ethical standards. Nevertheless, this power is not absolute and is constrained by precedent and parliamentary supremacy. Law provides the framework within which judges must operate, but it does not completely remove their capacity to create and develop legal rules in the pursuit of justice.
References
- Blackstone, W. (1765) Commentaries on the Laws of England. Book 1. Clarendon Press.
- Dworkin, R. (1977) Taking Rights Seriously. Harvard 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.
