English Legal System: Role of Judges in Making Laws

Running head: ENGLISH LEGAL SYSTEM
English Legal System
Name of the Student
Name of the University
Author Note

1ENGLISH LEGAL SYSTEM
Introduction
The English Legal system comprises statutes, regulations that are issued by the statutorily
authorized agents and government ministers, common law, and European Union Regulations.
This implies that majority of these laws have been derived from statutes but common law is
different from such statutes or statutory laws. In contemporary Britain, Parliament is conferred
with the power to make laws. The executive is responsible for implementing such laws whereas
the judiciary is liable for interpreting the law made by the Parliament. Parliament is perceived as
a democratic agency and its activity demonstrates will of a demotic electorate.
The typical motto that Parliament makes law and judges construe the same demonstrates
the sovereignty of Parliament that is the fundamental principle of the Constitution of the United
Kingdom. In recent history, several debates have taken place in the House of Commons
regarding the role of the judges and Parliament in determining acceptability of laws. The essay
shall establish that although judges have been traditionally conferred with the responsibility to
declare laws instead of creating them, govern the law-making responsibility is the prerogative of
the parliament, the judges’ also making laws through precedent doctrine and statutory
interpretation, which comprises the common law that is part of the English legal system.
Body
The disputes between the Parliament and the judiciary revolve around the constitutional
role of the judges. Even in recent history, MacComick (2016) states it was still broadly accepted
that judges do not make law but simply construe the laws. Further, the judges often interpret
various phrases in legislation and apply old common law principles to new situations but have
never changed the law significantly. However, in the words of Ojo (2016), in the contemporary

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era, this application of principles in new legal circumstances by the court has changed and judges
play a creative part in shaping the law. Therefore, the essential question that arises here is that
under what circumstances, judges should be able to make laws and to what extent.
The term common law refers to laws formed through decisions of the judges in contrary
to the statutory laws, due to which it is also known as judge made laws. The common law
system, which forms part of the English legal system, is a system of jurisprudence that is based
on the doctrine of stare decisis or the principle of precedent. Under this doctrine, any decision
made by judges of higher courts shall be binding upon the lower court judges.
According to Ojo (2016), common law legal system has originated in English legal
system in the 11 century and is not based on statutes as they are established and developed
through written opinions of the judges that they deliver during court proceedings1. Such
decisions of the higher court judges are binding upon the lower courts within the same
jurisdiction. MacComick (2016) argues that this does not imply that the common law systems is
entirely based on judge made laws or case laws. Democratic countries have legislative bodies at
the centre of democracies that passes new legislations. Judiciary is responsible for interpreting
the laws and applying them in cases. Such rulings become doctrine of stare decisis and bind the
lower courts2.
In A.G. V Butterworth3, Lord Denning stated that the doctrine of precedent signifies the
discretionary power of the court which must be exercised occasionally when the courts are
required to make decisions when there is no precedent or guiding rule. However, the term
1 Ojo, Marianne. "Parliamentary Sovereignty, the Rule of Law, and the Separation of Powers: Involving Other
Actors in the." Analyzing the Relationship between Corporate Social Responsibility and Foreign Direct Investment
(2016): 264.
2 MacCormick, D. Neil, Robert S. Summers, and Arthur L. Goodhart, eds. Interpreting precedents: a comparative
study. Routledge, 2016.
3 Attorney General v Butterworth [1962] 3 All ER 326 CA.

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‘discretion’ used in this context may indicate two things. firstly, it may be used to indicate that
the courts may use discretionary power to apply the principle decided in previous case ,
secondly, he may formulate a new principle in the absence of any previous ruling or statutory
provision. But in both cases, the ruling must be based on the doctrine of law and justice.
The existence of common law in the English law is itself evident of the fact that judges
can make law. For instance, the criminal act of murder is not defined under the statutory law but
is considered as an offense under the Common law. Similarly, there are two types of contempt of
court, one is contempt of court under the Contempt of Court Act and the other is the contempt of
court under the Common Law where the latter implies the circumstances that the courts have
been rearing as contempt of court for centuries. Several scholars argued that if judges were
conferred with the responsibility to make laws, it would seize the function of the Parliament,
which would further amount to erosion of democracy. However, one of the well-known judges of
the 20th century, Lord Denning, argued that judges can and they make laws.
The debates surrounding the role of judges in making law and parliament sovereignty a
ultimate law makers have been occurring prior to the enactment of the Human Rights Act 19984.
However, the fact that judges can make laws and have a democratic mandate to determine
acceptability of laws, is evident from the legal provisions set out under section [4] of the Human
Rights Act 19885. The provision states that judges though are not authorized to render any
democratically passed legislation as invalid but they are authorized to make a declaration that
any such legislation is not consistent with the principles of human rights that are safeguarded by
the statute.
4 Human Rights Act 1988.
5 Human Rights Act 1988 at section [4].