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A law is an obligatory rule of conduct imposed and enforced by the sovereign.

Therefore the law is the body of principles recognized and enforced by the state in the application of justice. The law is mainly made by a parliament, a legislative body given power by the constitution to draft law. However in the last few decades there has been a notion that judges make law. A judge is a public official appointed or elected to hear and decide legal matters in court1, Judges exercise judicial power. This involves making binding decisions affecting the rights and duties of citizens and institutions. In carrying out this task, a judge can use any of the following three sources of Ugandan law, Acts of Parliament or legislation, the common law, or previous decisions by the courts and a constitution.

To answer the question do judges make law? Implies that perhaps to some extent they do make law. A large amount of controversy has opted on this question as to how far judges can make law although a great number such as lord Bentham have referred to it as a childish fiction thus judges do not and cannot make law. Judges have played a dominant role in moulding the doctrines of the present law for example the common law which is also referred to as judge made law. Nevertheless today no informed observer disputes that judges do especially those of the Supreme Court make law. How do judges make law ?

The doctrine of Precedent is the process whereby judges should follow previous decisions in similar cases to help maintain a degree of consistency in the way the law is applied in similar cases. It is based on the maxim stare decisis which means stand by what has been decided. The Ratio Decidendi (reasons for deciding) is the binding part of a judges decision but how judges interpret this can vary thus changing the impact it can

have on future decisions. The obiter dicta (things said by the way) though not binding can still be used as persuasive precedent and so a judges influence can extend beyond that provided by the rules of precedent. Apart from the Obiter dicta there are other forms of persuasive precedent which although are not binding can still have an impact on the decisions of judges e.g. decisions of courts lower in the hierarchy. An example of this is in RvR (marital rape) where the HOL followed a decision made by the Court of Appeal and effectively created a new crime deciding that rape could be committed in marriage. Generally, decisions of higher courts are mandatory precedent on lower courts that is; the principle announced by a higher court must be followed in later cases. Occasionally, judges are called upon to give a ruling or make a decision when faced with a situation for which there seems to be no precedent or any guiding rule. In these circumstances, judges can be said to be formulating original precedent thereby using his own discretion regarding when he thinks rules need to be applied, changed, improved, or abolished. In A.G v Butterwort lord Denning states that;

It may be in the books, but if this be so all I can say is that thee sooner we make it the better.

Therefore a judge in using his discretion the phrase commonly used here is that he decides not on precedent but on principle, the difference is that in one case he is applying a principle illustrated by a previous example, in the other case he is employing a case not previously formulated but consonant with the whole doctrine of law and justice The court hierarchy plays a big part in deciding which decisions have more weight. Though the rules of precedent are applied rigidly and dont appear to allow scope for

creativity, there are ways in which the doctrine of precedent can be avoided thus allowing judges to create new law. There are four main ways in which courts can avoid precedent. First, when The HOL use of the practice statement. The 1966 Practice Statement allows the HOL to change the law if they believe that an earlier case was wrongly decided. They have the flexibility to refuse to follow an earlier case when it appears right to do so, thus extending the power of the Law Lords (at least in theory) to create law. Though it is not used often it can have a major effect throughout the legal system e.g. when Gemmel and Richards overruled Caldwell to make subjective recklessness the only acceptable recklessness in English Law. Secondly, would be The exceptions in Youngs Case for the Court of Appeal. The court of Appeal is normally bound by its own previous decisions. This rule comes from the case of Young v Bristol Aeroplane Co. Ltd. But that case did allow for 3 exceptions where the Court of Appeal need not follow its own past decisions. Where:

There are conflicting decisions in past Court of Appeal cases, the court can choose which one it will follow and which one it will reject

There is a decision of the HoL which effectively overrules a Court of Appeal decision; the court of appeal must follow the decision of the HoL.

The decision was made per incurium ie carelessly or by mistake because a relevant act of Parliament or other regulation has not been considered by the court

The first two exceptions do not give the Court of Appeal any power to change or create law; it is only the last exception (per incuriam) that gives a very small degree of flexibility to correct errors. Third, The extra exception for the Court of Appeal(criminal division).

The criminal division as well as using the exceptions from Youngs case can also refuse to follow a past decision of its own if the law has been misapplied or misunderstood. This exception is not often used but it does give the court of appeal the power to alter law when it is necessary. Fourth, distinguishing (which can be used by all courts). This is a method which can be used by a judge to avoid following a past decision which he would otherwise have to follow. It means that the judge finds that the material facts of the case he is deciding sufficiently different for him to draw a distinction between the present case and the previous precedent. He is then not bound by the previous case. This way of changing precedent can be used by a judge in at any level of court. In addition to the four ways mentioned above, the courts will on some occasions have to create new law when deciding a case on an area of law for which no law exists. A court may come across an original case that highlights a point of law that has not been discussed before. Judges further make law through statutory interpretation. The trend has always been that the legislature makes the law while the judges interpret it. Legislation may sometimes be ambiguous or unclear. When this occurs, a court will need to decide between different interpretations of legislation. In statutory interpretation the judge s are being asked to decide the meanings of an act of Parliament. There are a number of conflicting views on the role of judges in this area. Some follow the Literal Rule which states the words must be given their plain, ordinary, grammatical meaning. This can mean using the literal meaning of the words even if the result is not sensible. But the judges recognise that on some occasions other methods of interpreting the words were needed.

The golden rule is a modification of the literal rule. If the literal rule leads to an absurd result or repugnant result, or even if there is some ambiguous wording in the act. In the narrow application of the golden rule the courts may only choose between the possible meanings of a word or phrase. (R v Allen- Bigamy case). Or in the wider application of the golden rule it is used when the words have only have one clear meaning but that would lead to an absurd result. In these cases the courts will use the rule to modify the wording of the statute (Re Sigsworth-inheriting money from the mother he killed). The mischief rule gives a judge much more discretion than the golden rule. When using this rule the judge should look to see what the law was before the act was passed in order to discover what gap or mischief the act was intended to cover. The court should then interpret the act so the gap is covered (Smith v Hughes prostitutes soliciting from a window) A more recent form of statutory interpretation is the purposive approach. This goes beyond the mischief approach as it is not just looking to see what the gap was in the law, the judges actually decide what they believe parliament intended by the act. This gives the judges the most opportunity to create law and perhaps even distort what parliament intended. However when making statutes Parliament may base proposed statutes on hypothetical situations and it is not possible for parliament to predict every possible future situation that could arise. And so it may be necessary for a judge to interpret a statute so it can be applied to those unforeseen situations.

The common law is judge made law. It has been developed by the courts. It continues to be adapted to meet new situations and changing circumstances. The role of judges in interpreting legislation and the Constitution is similar. The Constitution is written in more

brief and general language than most Acts of Parliament. This is because it is expected to last longer and be able to accommodate changing circumstances. This style leads to a greater range of interpretations. Over the years, the Supreme Court has made decisions which have affected the practical operation of the Constitution. The parliament which is in charge of law making cannot amend each and every law simply because it fast becoming obsolete. Therefore when the law becomes unclear judges cannot simply say its unclear and ask the parliament to rectify it. Judges must take the law into their own hands to and interpret the laws to an extent that is reasonable and in the bounds of law and reason thus they should generally accept responsibility of reforming the law in the interests of clarity, efficiency and fairness.In Airedale NHS v Bland[4] the issue was whether it was lawful to stop supplying drugs and artificial feeding to Mr Bland, even though it was known that doing so would mean immediate death for him, several members of the house of lords made it clear that they felt that the case raises wholly new moral and social issues and that it should be decided by parliament, nevertheless the court came to a decision in the best of Mr Bands interests. According to William burnet Harvey;

A judge in laying down a rule to meet these situations is certainly making a new contribution to our law but only within limits usually well defined. If he has to decide upon the authority of natural justice or simply the common sense of the thing he employs the kind of natural justice or common sense which he has absorbed from the study of the law and which he believes to be consistent with the general principles of English jurisprudence.

It is clear from the above statements that, not only constitutional interpretation, but also statutes have to be interpreted with the changing times and it is here that the creative role of the judge appears, thus the judge clearly contributes to the process of legal development.

This is evidence of the power of the courts in their ability to create law through there simple interpretation of the law. However it should be noted that this is not a power readily available such that it can be used at the courts convenience.

Donogue V stephenson is the best case ever. Judges do make law. It is known as Case Law or Judge Made Law. They interpret the Statute Law but equity has to be the applied doctrine. So that the courts and judgements are fair to every citizen. The Court of Appeal set law every day, their decisions become law this creates flexibility and a progressive judicial system. They can not alter the statute law as it is literally written. Hence the law on suicide/murder where terminally ill people are aided to die can not be dealt with by the judges because of the staute law on suicide and murder. this can only be changed by the government who create the Statute Law and is the most powerful law maker.

The above analysis shows how judges can make law. However the word make should be used with extreme caution. The above argument is one that can also be used to support the fact that rather than make law, judges simply declare law. According Lord M.R; there is in fact no such thing as judge-made law, for the judges do not make the law, though the frequently have to apply existing law to circumstances as to which is has not previously been authoritatively laid down that such law is applicable[5]. Its therefore relevant to establish the reasons as to why some scholars do not agree with the fact that judges do not make law.

The Constitution provides for a complete separation of judicial power. This is one limitation on judges because it prevents courts from exercising powers which are not "judicial"

in character. The parliament by virtue of the constitution is that charged with the duty of making law. The constitution provides that

except as provided in this constitution, no person or body other than parliament shall have the power to make provisions having the force of law in Uganda except under authority conferred by an Act of parliament[6]

This is a clear example of the supremacy of parliament. Thus the separation of powers is a political and administrative tool that holds the pillars democracy together. And in a country under the rule of law the judiciary with its well defined limits cannot step into the shoes of the parliament. The constitution is the most supreme law of the land and its prohibition of the other arms of government to make law should be taken seriously thus if the judiciary is exercising such a powerful role, it should be more open to criticism and the contempt power should be used only rarely. Otherwise, it will reflect on the judiciary as a dictator

Further the rules of statutory interpretation further bar judges from making law. Its generally agreed that in order to interpret statutes judges must use precision based procedural rules. Statutory interpretation employs the literal rule, the golden rule and the mischief rule. They are guidelines that must be followed in the interpretation statutes. This is meant to reduce the entry of bias or judges discretion which may be unethically motivated. Therefore a judge who formulates a legal principle for the first time does so as an existing part of the law and not as a legislative innovation of his own. In general, principles are identified by showing that they are embedded in the established rules and decisions.

The rules of precedent. A precedent is a Legal principle, created by a court decision, which provides an example or authority for judges deciding similar issues later. Precedents are the source of most of judge made law. The common law practically evolved out of precedents. However precedents are bound by rules that limit law making by judges. Decisions of lower courts are not binding on higher courts, although from time to time a higher court will adopt the reasoning and conclusion of a lower court. Decisions by courts of the same level (usually appellate courts) are considered persuasive authority. That is, they should always be carefully considered by the later court but need not be followed. The constitution states that all laws must have a binding effect on all persons and authorities. Precedents in their inability to be binding on courts that is higher than them and applying only a persuasive to courts of the same level dilutes their ability to be termed as laws or have the ability to act like laws. Further to render precedents valid they must be founded in reason and justice; must have been made upon argument, and be the solemn decision of the court; and in order to give them binding effect there must be a current of decisions therefore court judges are not at liberty to exercise their freewill but rather their discretion must pass the test of fairness and reasonability.

Judicial power involves making binding decisions, affecting the rights and duties of people and institutions, by reference to existing law. Existing law is found in legislation, judicial decisions or common law, and the constitutions. In applying any of these sources of law, judges make law to a limited degree. The term limited should be noted. The power to make law is primarily vested in the parliament and under the constitution judges are under no obligation to make law. However in todays world where time is dynamic there is a need to constantly interpret the law to fit the ever changing times. Judges are most paramount at this stage

because they cannot send laws back for rectification simply because the times have changed. Its up to them to exercise the utmost reasonable discretion and interpret the law in such a manner that is complementary to the current mode of life in so doing making law.

Indeed the power to make law is one that is not vested in judges but it cannot be denied that to some extent they actually do make law.



William Burnett Harvey, Introduction to the Legal System in East Africa, East African

Literature Bureau, Kampala, Nairobi Glanville Williams Learning the Law 12th ed. Sweet & Maxwell 2002 pg 111



The Constitution Of The Republic Of Uganda Article 79

4. 238

.Osborns concise Law Dictionary, 10th Edition, Sweet & Maxwell, London.2005 Pg


Blackstones Commentaries 69, 70 Jacqueline Martin, The English Legal System, 3rd Ed. Hodder & Stoughton 2002


pg.18 [1] Catherine Elliot, The English Legal System 8th edition