Gavin Howe
While judges are not lawmakers in the traditional sense, they do play a significant role in shaping the law and ensuring its application and evolution. Judges interpret statutes, fill legislative gaps, and decide on novel issues, thereby establishing legal principles that function as laws. This process, known as judge-made law or case law, allows the legal system to adapt to new problems and evolving social contexts without solely relying on legislative action. However, the authority of judges is limited, and they must operate within constitutional boundaries and existing legal frameworks. The question of whether judges can create new laws remains controversial, with critics arguing that judicial law-making undermines democratic accountability and may lead to inconsistency in rulings.
| Characteristics | Values |
|---|---|
| Judges' role | To uphold the laws which are made by parliament |
| Judges make laws? | Yes, in "hard cases", judges can and do create new laws |
| Judges' freedom | Restricted by the rules of precedent and the supremacy of Parliament |
| Judges interpret the law | Yes, judges interpret the law but do not make the law |
| Judges are guided by | Policy, their own views, and precedent |
| Judges implement | Their biases |
| Judges change law | Yes, judges can change old laws and create new ones |
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What You'll Learn
Judges interpret the law, not make it
The role of a judge is to uphold the laws made by the parliament, not to make new laws. While some believe that judges should interpret the law and not create it, others argue that judges do make new laws, especially in "hard cases". Judges have the freedom to interpret statutes and apply precedent, which can result in new interpretations of the law that may not align with the original intent.
The concept of judges interpreting the law, not creating it, is a long-standing debate. At his nomination to the US Supreme Court, Judge Brett Kavanaugh stated that judges should interpret the law, not make it. This view aligns with the traditional perspective that judges declare or find the law rather than create it, considering law-making the prerogative of Parliament.
However, there are differing opinions. Legal writer David Kairys, for instance, theorises that "judges are guided not by precedent, but by policy, and their own views". Kairys supports the realistic theory, which posits that laws change and that new principles can emerge from old ones, resulting in the creation of new laws.
The role of judges in law-making is particularly evident in two areas: interpreting statutes and developing common law. When interpreting statutes, judges may have to clarify vague terms or apply the law to novel situations. For example, in DPP v Jones (1999), the House of Lords interpreted the rule regarding the public's right to use highways, concluding that it included reasonable purposes beyond just walking or passing.
Additionally, in developing common law, judges can create new laws through precedent. A precedent set by a higher court can overrule previous decisions and establish new legal principles. This discretion allows judges to introduce their biases and social perspectives into the law, potentially distorting the rule of law while also increasing its precision and adaptability to new situations.
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Judges make law in 'hard cases'
The role of judges is often understood as interpreting and applying the law, rather than creating it. In this sense, judges uphold the laws made by the legislature and apply them to specific cases that come before the courts. However, there is a long-standing debate about whether judges can or should be considered lawmakers, particularly in "hard cases".
The idea that "judges make law in hard cases" is a controversial one. On the one hand, some argue that judges are bound by precedent and the laws created by the legislature, and their role is to interpret and apply these laws, not to create new ones. This view holds that judges should be constrained by the rules of statutory interpretation and the supremacy of the legislature.
On the other hand, others argue that judges do create new law, especially in "hard cases" where there is no clear precedent or existing law to cover the situation. In these instances, judges may interpret the law in a way that effectively creates a new legal rule or precedent. This is sometimes referred to as "judge-made law" or "common law". Proponents of this view, such as legal writer David Kairys, argue that judges are guided by policy and their own views, and that precedents are cited to justify their decisions retrospectively.
An example of this can be seen in the case of DPP v Jones (1999), where the House of Lords interpreted the rule regarding the public's right to use highways, finding that it should also include reasonable purposes beyond just walking or passing. In doing so, they created a new interpretation of the law that could be applied in future cases.
While some may argue that this is a necessary function of the judiciary, ensuring that the law can adapt to new situations and fill in gaps left by the legislature, others may view it as a potential abuse of power. There is a concern that judges can use their discretion to implement their own biases and distort the law, particularly in highly politicized courts such as the US Supreme Court, where judges are appointed by partisan governments.
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Judges are guided by policy and personal views
The role of judges is often considered to be one of upholding the laws made by the legislature rather than creating new laws. However, in practice, the line between interpreting and creating law can become blurred. Judges are tasked with interpreting the law and applying it to specific cases, and in doing so, they can introduce their own biases and views, shaping the law to their own perspectives.
Legal writer David Kairys, for example, argues that "judges are guided not by precedent, but by policy, and their own views". Kairys' view is supported by empirical studies, which find that biased judges can favour certain litigants and distinguish precedents to introduce their own idiosyncratic biases, thereby distorting the rule of law. This suggests that judges can and do shape the law according to their personal views, particularly in hard cases where there may be no clear precedent or existing rule.
Furthermore, the doctrine of judicial precedent, which is meant to guide judges' decisions, may not always be as restrictive as it seems. While judges are bound by the rules of precedent, they also have the power to overrule or reverse precedents, introducing new interpretations or justifications that can effectively change the law. This discretion allows judges to make new laws or adapt existing ones to fit their own policy preferences and views.
For instance, in the United States, conservative judges like Neil Gorsuch have been accused of reinterpreting constitutional rights to favour wealthy organizations while diminishing civil liberties and government regulatory authority. Similarly, the appointment of Supreme Court justices with particular political leanings can result in rulings that help a specific political party maintain power, as seen in the case of Judge Kavanaugh's appointment.
In conclusion, while judges are meant to interpret and apply the law rather than create it, their decisions can be guided by policy preferences and personal views. The exercise of judicial discretion and the interpretation of statutes can lead to the creation of new laws or the distortion of existing ones, raising questions about the independence and objectivity of the judiciary.
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Judges can be a moderating force against extreme swings in legislation
While the role of judges is to uphold the laws made by the parliament, there are several instances where judges have been seen to create new laws. The controversy regarding the role of judges in law-making has been a long-standing one. In 1345, an English lawyer argued:
> "I think you will do as others have done in the same case, or else we do not know what the law is."
To which Chief Justice Stonore replied:
> "No; law is that which is right".
In hard cases, judges can and do create new laws. For example, in the case of DPP v Jones (1999), the House of Lords stated that a rule levied unrealistic and unwarranted restrictions on everyday activities, and that the highway is for the public to use for reasonable purposes. Judges can also interpret statutes and apply precedent, which can result in the creation of new laws.
The judiciary can act as a moderating force against extreme swings in legislation. However, with the increasing number of conservative judges, there is a shift towards reinterpreting constitutional rights to favour wealthy organizations and diminishing civil liberties. This can be seen in new interpretations of the First Amendment's protection of religious beliefs, where employers and businesses have more justifications for refusing to provide employee health benefits or serve customers they do not like.
Despite this, the role of judges as lawmakers is still controversial. Some argue that judges should interpret the law, not make it, and that the Supreme Court has no authority to enforce laws. The court's legitimacy comes from public confidence in its independence, objectivity, and fairness, and adopting partisan positions can undermine this.
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Judges uphold laws made by parliament
While some sources argue that judges do make laws, the traditional view is that a judge's role is to uphold the laws made by parliament. Judges interpret the law and apply it to specific cases, and their freedom is restricted by the rules of precedent and the supremacy of parliament. They are confined to their territories and must follow the guidelines provided by parliament.
In some cases, judges may appear to create new laws, but this is typically done through the interpretation and application of existing laws and precedents. Judges consider previous legislation, case law, and precedents set by other judges to reach their decisions. This can lead to new interpretations and applications of the law, but the judges are still working within the framework established by parliament.
One example of judges interpreting and applying the law is the case of DPP v Jones (1999), where the House of Lords considered the rule that the public has the right to use highways for walking, passing, and other reasonable purposes. The Lords interpreted this rule and found that it restricted everyday activities in an unrealistic and unwarranted way. Thus, they applied the rule in a way that upheld the rights of the public to use highways for reasonable purposes.
In another case, the House of Lords used the 1966 Practice Statement to overrule one of its earlier decisions, demonstrating the ability of judges to change and develop the common law. This discretion allows judges to interpret and apply the law in a way that best fits the specific circumstances of a case while still upholding the overall framework of the law made by parliament.
While judges have a role in interpreting and applying the law, their power is limited, and they cannot enforce the laws they interpret. The legitimacy of the judiciary comes from public confidence in their independence, objectivity, and fairness, and they are expected to interpret the law without creating new laws that were not intended by the original writers of the legislation.
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Frequently asked questions
Judges do not create laws in the same way legislatures do. However, through interpreting statutes and deciding novel issues, they can establish legal principles that function as law.
Judge-made law refers to legal rules developed by courts through judicial decisions rather than by legislative statutes. It is also known as case law or common law.
Yes, a judge's decision is the final say. Judges are the final authority in the courtroom. Their court order must be followed until a new judge makes a new decision.
Judges interpret statutes by applying them to the facts of a case. They also interpret statutes by deciding novel issues and filling in gaps in legislation, ambiguous wording, or unforeseen scenarios.
No, judges are not free to make laws entirely based on their personal views without checks. They are bound by constitutional principles, existing statutes, and the doctrine of precedent.
