Judge-Made Law

Running head: JUDGE-MADE LAW
Judge-Made Law
Name of the Student
Name of the University
Author Note

1JUDGE-MADE LAW
Introduction
Due to the presence of Checks and Balances and the Doctrine of Separation of Power,
the judiciary is not liable or duty-bound to make laws. However in earlier times it was the
responsibility of the judges to make common laws by way of passing orders and judgements
pertaining to particular cases, civil or criminal. Therefore, there is a controversy pertaining to
the court’s jurisdiction to make new law or whether it is the legislature who is endowed with
this duty only. The court have laid down they do not intend to make law on their own,
however it happens in the course of judicial activism and to set examples for future
references, which are known as precedents1. However it is laid down that there are two views
pertaining to the judge-made laws, which are the declaratory and the creative views.
Discussion
The Declaratory Theory against judge-made laws
Famous jurist Blackstone is considered to be the profounder of the declaratory theory
of judge made laws. He mentioned that the judges are sworn to analyse and determine in
accordance to the laws and customs of the length and not what as per his own judgement. He
also commented that the judges are not empowered to pronounce a fresh law, however they
are empowered to maintain and amend the old one. According to Blackstone’s theory, the
judges merely find out the laws and regulations as they face different situation for the law has
always existed. Therefore, he stated that the judges only extract the appropriate laws that are
logical and relevant for a situation that has been in already existing. Therefore he intended to
say that the judges do not make new laws. The declaratory theory founded by Blackstone was
adopted by several other theorists and judges Lord Macmillan held in the case Read v Lyons2.
In this case Lord Macmillan held at it is the duty of the judges to decide a case between two
1 Currier, Thomas S. "Time and Change in Judge-Made Law: (1965) 51 Prospective Overruling." Va. L. Rev
201.
2 Read v.Lyons (1947) A.C 156

2JUDGE-MADE LAW
little litigants, and not to who decide the rationale of the law of England. It is not the judiciary
is duty to do so and it is better being left to be decided by other hands. On the other hand
Lord Esher held in the case of Willis v Baddeley that it there is nothing called judge-made
laws as the judges are not authorised to make laws but they are authorised to apply the
existing law to situations where that particular law must not have been applied, therefore
creating an exception to the case, which ultimately seems like a fresh law3.
Therefore, by the declaratory theory, the judges do not make laws as put forwarded by
Blackstone and several other jurists.
The Creative Theory of Judge-made law
On the other hand, the second view of various political thinkers and jurists supports
the idea that judges make fresh laws4. Jeremy Bentham gives an idea that he was in favour
of judgement laws yet not acknowledging it expressly that judges make law. He held that the
judges make common law just like a man makes laws and regulations for his dog. The
master of the dog waits for the dog to break something until he punishes it. Similarly the
judges wait until a person who breaks the pre existing laws so that he can be punished
accordingly. In the course of delivering such punishments the judges tends to create common
laws5.
On a similar note, political thinker John Austin supported the declaratory theory
stating that the judges self employed a childish fiction about not making the common law but
miraculously the judges tends to who declared statements and significant orders that it do not
find its reference in the pre existing laws and therefore are considered to be new laws formed
by the judges. Lord Reid was of the opinion that judges make law and at the judgement laws
3 Willis v Baddeley [1892] 2 QB 324
4 Carter, Lief, and Tom Burke. Reason in law. Routledge, 2017.
5 Waldron, Jeremy. "Is the rule of law an essentially contested concept (in Florida)?." (2017) The Rule of Law
and the Separation of Powers. Routledge, 117-144.