Do Judges Make the Law or Find It - Essay Example

? Do Judges Make the Law or Find It? of Do Judges Make the Law or Find It? It is no doubt that judges have a very special place in the legal system of countries that apply common laws. The internal legal culture of the common law countries focuses on the roles of judges. While it is agreeable that judges have a special place in the legal system, there is a raging debate on their roles especially in regard to making laws. There are those who believe that in the creative role of judges they make laws. 1However, there are those who deny any creative role of judges and argue that those judges who make new rules or laws are thwarting people’s will, or are usurping the legislature role. An older dimension of the ideology that judges do not make law is captured in saying that judges find or declare law but do not make it.2 The question of whether judges make law or find and the arguments relating to this question is hinged on the roles of the three major organs of the government; the executive, judiciary, and legislature. It is argued that the legislative branch of the government has the mandate of creating the law.3 Nonetheless, it is true that the executive branch can make the law through executive orders which operate as law, and so can the judiciary branch make the law. While it is generally known that the judiciary is mandated to interpret law, it has over the years asserted its authority and has established itself as an equal branch of the government that can make law.4 Case law is a common example of the law that is created by the court system or the judiciary. Case law can be defined as the sum of body of cases that creates a body of law or jurisprudence on a certain subject distinct from legislations and other sources of law. Case laws interpret regulations, constitutional provisions, and statutes. Strasbourg jurisprudence recognized the powers of the courts to make laws.5 In R v Governor of HMP Brockhill Ex parte Evans (2000), it was held that even in the criminal law, the domestic courts can develop law through judicial interpretation of a case or more.6 So, are judges really law makers or are merely law finders? The fact that the main role of the judges is to interpret and apply existing law in a particular case is undisputable. Therefore, judges are supposed to find any existing law that is relevant to a case at hand and apply it to make legal decisions. In this case it can be said that judges are law finders rather than being law makers because they have to find law.7 The doctrine of separation of powers stipulates that each branch of the government should not interfere with the mandate and roles of the other branch and each branch should be allowed to operate independently. In this respect, the court system should interfere with the legislature’s role of making the law.8 Instead, it should preoccupy itself with the role of interpreting the law. However, it is an appreciated fact within the legal fraternity that the legal system is dynamic and keeps on developing and so does the role of the judges. As such, it is expected that the role of the judges should not be confined only to finding laws and applying them, but rather to make law where necessary and leave their own legal imprint in the legal system.9 In common law countries, the case law left behind by the judges is used in applying to other cases that relate to the previous ones based on the doctrine of judicial precedent. It has been argued to a greater extent that the doctrine of judicial precedent is an indirect way in which judges make law.10 In common law countries and democratic states, the role of judges is perceived to be active and creative rather than passive. This explains why they have a special place in the judiciary branch of government. Apart from being expected to interpret the law, they are also expected to contribute towards the growth of the legal system of their countries through their knowledge, skills, experience, and creativity.11 Whereas the primary role of the judges is to interpret laws, there are numerous manifestations of their role as lawmakers, albeit to a limited extent compared to the legislature. The biggest question in this debate has always been, therefore, how can judges make law without necessarily being part of the legislature?12 One of the ways that this has been happening is through the doctrine of judicial precedent. This doctrine is guided by the another doctrine, called the doctrine of stare decisis which refers to the following main rules: the superior court is bound by its own decisions; superior courts have the power of overruling legal principles that the inferior courts have laid down; and, the inferior courts are bound by the decisions of the superior courts in similar cases. The doctrine of judicial precedent allows the judges to formulate new precedents, interpret the precedent differently, and to overrule an earlier precedent.13 In addition, the judges have the mandate of upholding the supremacy of the constitution by analyzing the constitutionality of the state enactments and parliamentary Acts. The doctrine of judicial review gives the judges the authority of reviewing any law passed by the legislature on the grounds of the constitutional supremacy and rule of law.14 The judges can therefore invalidate certain provisions laws enacted by the government. This shows that the judges have a significant role in the law making process even though they may not be part of the legislature. Therefore, it can be implied that they have authority and power over the law making process. It is apparent that through the judicial precedent and the doctrine of judicial review, the judges have the powers to make law through their various judgments. This power and authority is very evident in common law countries which practice both precedents.15 Since in some cases there may be gaps in law, the judges are required to take account of precedent and also to decide the way that the case should proceed and what the outcome should be based on the existing principles of law. In Re Sigsworth, Lord Denning held that when they are interpreting the statutes it is necessary that they correct the omissions left by the legislature; that is, “…fill in the gaps.”16 However, there is a strong position that judges do not make law as they simply find law. This school of thought is held by the traditionalists who support the declaratory theory. The declaratory theory holds that the judges do not change or create the law; instead, they declare and apply what the law has always been.17 Those who hold this view emphasize the point that the primary function of the judges is to declare or give effect to the will of the legislature and that they should be passive and apply the law as it is, and in accordance with the intention and text of the statutes. Donoghue v Stevenson provides the basis of declaratory theory arguments. In this case it was argued that there were two ways of looking at the case.18 The first one was that judges create law; the law was wrong and the judges created new law that worked back in time or had retrospective effect. The second one was that judges declare law; that the law was always there and no one knew and that the judges found it and declared it. The supporters of declaratory theory also argue that making of law by judges is inconsistent with the doctrine of separation of powers that prohibits one organ of the government from interfering or overlapping the functions of the other organ.19 The House of Lords in Knuller v DPP rejected the doctrine that the judges had general power either of creating new offences or widening existing offences as the process of making the law was solely the mandate of the parliament.20 Besides, they further argued that judicial creativity is not necessarily a good thing because some of the judge-made laws end up being bad law. They cited the Priestly v Fowler which is regarded as a disastrous law that was made by the judges.21 This law mainly forbade an employee from taking legal action against the employer for the negligence of other employees. Moreover, the supporters of the declaratory theory argue that the judicial law-making whether as an overruled precedent or original precedent is usually backdated. Therefore, they argue that the judges should employ prospective overruling doctrine in order to ensure that the precedence is not retrospective. Furthermore, those criticizing the making of the laws by the judges argue that if the judges leave the law and make their own decisions, they may be partial in their decisions even though their decision may be just. In addition, they argue that the judge-made laws may clash with the executive and the parliament.22 In a nutshell, judge-made laws may be viewed as undemocratic means of making the law as it violates the doctrine of separation of power. Also, it can be viewed as undemocratic as it is devoid of the consultation of the people’s representatives as democracy demands.23 Nonetheless, much of the judge-made laws are backed by the laws enacted by the parliament. It is also argued that the judges’ main duty is to apply the law as they find it, and is not to rectify perceived inadequacies through the use of creative interpretation. The judges can only find law by applying the legal principles that already exists.24 The judges also have split opinions on the question of whether judges make or find law. Those who support the declaratory theory hold that parliament make laws, while the judiciary interprets them. However, there are those who argue that they too can make the law. In McLoughlin v O’Brian, Lord Scarman showed that there are those judges who have taken the middle course on the question.25 In some cases, like Kleinwort Benson v Lincoln CC, the House of Lords took a dominant and traditional posture of the English Judiciary and held that judges should be passive.26 However, in cases like R v Governor of HMP Brockhill Ex parte Evans ( 2000), the House of Lords seemed to argue against the arguments in Kleinwort Benson v Lincoln CC, and argued that the judges should be active and should develop laws through judicial interpretation of cases. Those who support the argument that the judges do make laws criticizes the declaratory theory by arguing that judges can hide behind the “higher” principles and evade their responsibility by stating that they are bound by the law. However, the supporters of this theory counter this criticism by stating that it gives the appearance of impartiality; judges can hide behind the theory in order to prevent the view that they prefer one view of the law over another, which helps retain the public respect for the judiciary.27 In conclusion, it is evidently clear that the judges have a very special place in the legal system. Their role in the legal system, and to some extent other systems of the society cannot be overemphasized. They are the backbone of the judiciary branch of the government and as such their actions have significant influence in the society. Over years, there have been debates on whether the judges make or find law. From the discussion, it is clear that there are manifestations of both roles. It can be observed that the judges make law in some cases, and in other cases, they find law. While the view that they find law is nearly incontestable because their mandate as the judiciary branch of government is to interpret law is undisputable, the view that they make law is debatable. Some argue that they do not make law as the “judge-made laws” are from already existing laws. In other words, their interpretations are founded on the laws that have already been enacted by the parliament and they do not create absolutely new laws. That argument notwithstanding, it is clear that judges do make and find laws. However, they make law within very narrow confines. Overruling successfully explains that judges make law. Making or creating new laws by the judges is inevitable in a bid to do justice and in order to bring law to be in tandem with social changes. Bibliography BOOKS Foster S The Judiciary, Civil Liberties and Human Rights (Edinburgh University Press 2006) Griffith J Politics of the Judiciary (Fontana Press 2010) Sypris P The Judiciary, the Legislature and the EU Internal Market (Cambridge University Press 2012) Thomas B and C Shaw Legislature and Judiciary (BiblioBazaar 2009) JOURNAL ARTICLES Linda J "Which is to be Master," The Judiciary or The Legislature? When Statutory Directives Violate Separation of Powers” UCLA Law Review; 56 (4) 2009, p837-898, Mac B and R Kunz “Confidence in the Judiciary: Comparing the Independence and Legitimacy of Judicial Systems” West European Politics; 34 (2) 2011, p317-345 CASE LAWS Donoghue v Stevenson [1932] UKHL 100 Kleinwort Benson v Lincoln CC [1998] 4 All ER 513 Knuller v DPP [1973] AC 435 McLoughlin v O’Brian [1983] 1 AC 410 Priestly v Fowler (1837) 3 Mees & Wels. 1 R v Governor of HMP Brockhill Ex parte Evans [2000] 4 All ER 15 Re Sigsworth [1935] 1 Ch 98 Read More