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do judges make law?

Introduction
A law is an obligatory rule of conduct imposed and enforced by the sovereign 1[1]. 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 court 2[2], 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
Do judges make law?
To ask the question do judges make law? Implies that perhaps to some extent they do make law.
A great deal of controversy has centered on this question as to how far judges can legitimately make
law although a great number such as lord Bentham have referred to it as a childish fiction thus
judges cannot make law. Many other scholars more so those that are followers of the realist school
of thought have placed absolute emphasis on the discretion of judges and relegated the "rules" to
an obscure position. It can however not be denied looking closely at the present legal system that
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. In the same way the likes of lord Denning moulded the doctrines of the law of
contract and otherwise. To answer if judge make law lets its crucial to analyse how they do so.
The application of precedent by judges, whether they are developing the common law (for e.g.
in areas such as negligence or murder) is the main mechanism whereby judges make law.
Precedents are legal principles, created by a court decision, which provides an example or
1[1] Osbornes concise law dictionary, 10th edition, page 236
2[2][2] Blacks law dictionary

authority for judges deciding similar issues later. 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 Butterwort3[3] 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. Further because statutes
and common law rules are often too vague and unclear it is often inevitable in "hard cases" for a
judge to create new law by deciding cases. The decision of courts of justice when exactly in
point with a case before the court are generally held to have a binding authority, as well to keep
the scale of justice even and steady because the law in that case has been solemnly declared and
determined.
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. 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
3[3]

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 Bland4[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.
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 applicable5[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.
Why judges do not make law

4[4]
5[5] Att-General v butterwort.

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
constitution of the republic of Uganda provides for that existence of three arms of government, all
vested with powers that are in all ways distinct. 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[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
6[6] Article 79, the constitution of the republic of Uganda

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.
Conclusion
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.

Bibliography

1. William Burnett Harvey, Introduction to the Legal System in East Africa, East African
Literature Bureau, Kampala, Nairobi
2. Glanville Williams Learning the Law 12th ed. Sweet & Maxwell 2002 pg 111
3. The Constitution Of The Republic Of Uganda Article 79
4. .Osborns concise Law Dictionary, 10th Edition, Sweet & Maxwell, London.2005 Pg 238
5. Blackstones Commentaries 69, 70
6. Jacqueline Martin, The English Legal System, 3rd Ed. Hodder & Stoughton 2002 pg.18
7. [1] Catherine Elliot, The English Legal System 8th edition