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Historically there has been considerable debate about the role of the judiciary in
the English common law system. Constitutionally it is for the legislature to
make law and for the judiciary to give effect to that law. The parliament and
legislature are elected representatives of the people therefore they have the
legitimacy to make new laws. This strict approach to the role of the judiciary
was expounded by William Blackstone and is known as the ‘declaratory theory’
– that the role of the judge is to declare what the law is, and not to make it. An
example of this approach is given by Lord Simonds in the case of Midland
Silicone Ltd v Scruttons Ltd (1962).

However, there is ample judicial writing and scholarly discussion to conclude

that in the English common law system the judiciary do perform a limited law-
making function in incrementally developing the common law to ensure that it
keeps pace with changes in social and economic conditions and remains
sufficiently flexible to accommodate new situations.

This essay seeks to establish several areas in which judges do make law.
Presently a judge’s role is not to make law but to uphold the laws which are
made by the parliament as per the constitution.

The freedom of judges is restricted by the rules of precedent. Doctrine of

judicial precedent is fundamental to the English common law system. In
practice it means that a judge deciding a particular case must look for a
precedent – a decision of an earlier similar case – to help them reach their
decisions before them. One of the most important reasons to follow it is the idea
of doing justice. Consistency and certainty is seen essential elements of doing
justice. Another reason to follow judicial precedent is that if judges follow the
reasoning and decisions of their colleagues, the common law becomes certain
and predictable.

Ronald Dworkin a famous common law theorist who believes judicial

legislation does, in a contradictory way, impose both freedom and constraints
on the judge. Dworkin also believes that even if there are no evident legal
constraints, there still may be moral, social or traditional ones that are holding a
judge back from using his own discretion entirely. Dworkin also said that
judges have no real discretion in making case law. He sees law as a seamless
web of principles, which supply a right answer – and only one – to every
possible problem. In his book Law’s Empire (1986), Professor Dworkin claims
that judges first look at previous cases, and from those deduce which principles
could be said to apply to the case before them. Then they consult their own
sense of justice as to which apply, and also consider what the community’s view
of justice dictates. Where the judge’s view and that of the community coincide,
there is no problem, but if they conflict, the judges then ask themselves whether
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or not it would be fair to impose their own sense of justice over that of the
community. Dworkin calls this the interpretive approach and, although it may
appear to involve a series of choices, he considers that the legal principles
underlying the decisions mean that in the end only one result could possibly
surface from any one case. Dworkin’s approach has been heavily criticised as
being unrealistic: opponents believe that judges do not consider principles of
justice but take a much more pragmatic approach, looking at the facts of the
case, not the principles.

The rules of judicial precedent mean that judges should follow a binding
precedent even where they think it is bad law, or inappropriate. This can mean
that bad judicial decisions are perpetuated for a long time before they come
before a court high enough to have the power to overrule them.

Lord Denning the master of rolls in his book “The Discipline of Law” stated
that he was against the rigid application precedent as that would enable a bad
precedent to be followed. If it is practiced strictly then it will leave no room for
judicial creativity in developing colon law principles to meet the needs of
changing society.

However in present society judges have a considerable scope for growth and
development of common law. When dealing with a case the practice of
precedent requires the judges to ask themselves if the fact of the case is
materially similar to the earlier case. If the facts are materially different then
judges will distinguish the case from earlier one and apply a different rule. To
identify whether the facts are materially similar or not the judges must
determine the general rule. In the course of delivering a judgment, the judge
must consider ratio. Ratio is the principle of law which decides a case while
obiter dictum is a proposition of law which is not essential to the case.

The court has a great deal of choices in identifying the ratio and interpreting the
law. This enables judges to adapt the changes of the society even acting within
the scope of the society. In 1952 Lord Denning gave lecture called ‘The Need
for a New Equity’ , arguing that judges had become too timid about adapting
the law to the changing conditions of society. They were, he felt, leaning this
role too much to parliament , which was too slow and cumbersome to do the job
well.

In Mcloughlin v O'brian Lord scarman noted that the distinguishing feature of

common law is that it enables judicial creation of new law as the justice of the
case demands. He also noted that stated that the courts’ function is to adjudicate
according to principle, and if the results are socially unacceptable Parliament
can legislate to overrule them. He felt that the risk was not that case law might
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develop too far, but that it stood still and did not therefore adapt to the changing
needs of society.

Activist judges such as Lord Denning support the judicial development of the
law. It is to be noted that insistence on doing justice by disregarding precedent
as in High Tress case might be dangerous. However judges will not legislate in
all cases. But in present it seems that judges have become more aware of
political, social and economical circumstances that for the back draw of any
case before then and the practical consciences of reaching a particular decision.

The Human Rights Act 1998 however has had profound impact on the judicial
practice of precedent in United Kingdom. In particular S:2 of Human Rights
Act 1998 imposes for domestic courts a duty to take ‘into account’ judgments or
decisions of EU courts of Human Rights when considering a convention right.
Under English law a man could not be found guilty of the rape of his wife
because of the legal principle of one flesh. A man was convicted of raping his
spouse in 1992 and his appeal in 1995 was dismissed. This effectively changed
the law. The European Court of Human Rights also dismissed his appeal.
Judges of the European Court of Justice definitely can make law and these
impacts on the United Kingdom. Any conflict between the laws of England and
EU law is resolved in favour of EU law. As Lord Denning said European law is
an incoming tide. The Factortame case 1991 established this – that EU law
trumps Acts of Parliament.
The European Court of Human Rights, which cannot overrule British statutes,
often persuaded the UK Parliament to change the law. In 2000 the Grady case
caused the UK to change the law and allow known homosexuals to served in the
armed forces. In 1996 a British court had ruled that it was not unreasonable to
ban gays from the military and that such a ban was lawful. The European Court
of Human Rights effectively changed the law.
The House of Lords currently known as Supreme Court apart from cases
concerning European Law, it is the highest appeal court on civil and criminal
matters and all other English courts are bound by it. It was traditionally bound
by its own decisions, but in 1966 the Lord Chancellor issued a Practice
Statement known as 1966 Practice Statement saying that the House of Lords is
no longer bound by its own decisions where it seems “right to do so” without
needing permission from Parliament.
The Supreme Court (House of Lords) has explained its approach to judicial law-
making in the case of C (A Minor) v DPP (1995) which raised the issue of
children’s liability for crime. The common law defence of doli incapax
provided that a defendant aged between ten and fourteen could be liable for a
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crime only if the prosecution could prove that the child knew that what he or
she did was seriously wrong. On appeal from the magistrates’ court, the
Divisional Court held that the defence was outdated and should no longer exist
in law. An appeal was brought before the House of Lords, arguing that the
Divisional Court was bound by precedent and not able to change the law in this
way.
The House of Lords agreed, and went on to consider whether it should change
the law itself (as the 1966 Practice Statement clearly allowed it to do), but
decided that this was not an appropriate case for judicial law-making.Explaining
this decision, Lord Lowry suggested five factors were important:

• where the solution to a dilemma was doubtful, judges should be

wary of imposing their own answer;

• judges should be cautious about addressing areas where Parliament had

rejected opportunities of clearing up a known difficulty, or had passed
legislation without doing so;

• areas of social policy over which there was dispute were least likely to be
suitable for judicial law-making;

• fundamental legal doctrines should not be lightly set aside;

• judges should not change the law unless they can be sure that doing so is
likely to achieve finality and certainty on the issue.

This guidance suggests that the judges should take quite a cautious approach to
changing the law. In practice, however, the judges do not always seem to be
following these guidelines. For example, in an important criminal case of R v
Dica (2004) the Court of Appeal overruled an earlier case of R v Clarence
(1888) and held that criminal liability could be imposed on a defendant for
recklessly infecting another person with HIV. This change in the law was made
despite the fact that the Home Office had earlier decided that legislation should
not be introduced which would have imposed liability in this situation
(Violence: Reforming the Offences Against the Person Act 1861 (1998)). The
Home Office had observed that ‘this issue had ramifications going beyond the
criminal law into wider considerations of social and public health policy’.

In R v Shivpuri (1986) case the House of Lords did not followed its own
previous decision of Anderton v Ryan (1985) even though it was so recent.
There are a range of cases like this where Supreme Court (House of Lords) has
been prepared to apply the 1966 Practice Statement. Such as in R v R (1992)
case it held that rape within marriage is a crime, overturning a legal principle
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that had stood for centuries. In hall v Simons (2000), the House of Lord refused
to follow the earlier case of Rondel v Worsley (1969), which had given
barristers immunity against claims for negligence in their presentation of cases.

Court of Appeal occupies the second highest position in the hierarchy of

English courts. Generally both civil and criminal divisions of Court of Appeal
are bound by the decisions of the House of Lords unless reasonably
distinguishable. Lord Denning as master of rolls criticized this practice and did
not want the Court of Appeal to be bound by the wrong decisions of the House
of Lords.

However Lord Denning had been severely criticized for disregarding the House
of Lords decisions, although in each occasions Denning’s decisions turned out
to be right. The Court of Appeal in R v James (2006) case preferred the
decision of privy council Attorney General for Jersey v Holley (2005) over  R
v Smith (2000). Thus it appears that judges had great deal of scope in
developing the common law to meet the demand of time and to do justice.

Lord Etherton argued that public law and human rights developments have
intensified thejudges. The practice of precedent operating in the Court of
Appeal (civil division) was established in Young v Bristol Aeroplane
Company Limited (1944) Lord Greene master of rolls stated that the Court of
Appeal was bound by its own previous decisions and by the decisions of courts
of equal jurisdiction subject to the following exceptions:

1. Where the court of appeal is faced by two conflicting decisions of its own,
the present court must choose which decision to follow;

2. The Court of Appeal must refuse to follow a decision of its own which
conflict, with Supreme Court (House of Lords) decisions, even though the Court
of Appeal has not been expressly overruled;

3. If a previous decision of the Court of Appeal is considered to have been given

per incuriam then the present Court of Appeal is not bound to follow it;

4. If there is a proposition of law assumed to exist by an earlier court and was

not subject to argument or consideration by that court.

The last of these exceptions was added by R v Brent London Borough

Housing Benefit Review Board (2001).
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In the criminal division, the results of cases heard may decide whether or not an
individual goes to prison, so the criminal division takes a more flexible
approach to its previous decisions and does not follow them where doing so
could make injustice.

If Parliament was dead against judges making law then surely it would have
passed a law to that effect. In other common law countries it is certain that
judges can make law and do. In the US Brown v Board of Education; the
Plessy Case; Roe v Wade (1973); the decision to find that the prohibition on
interracial marriage was unconstitutional and so on have all been decisions
made by the Supreme Court(House of Lords) that become law and indeed part
of the constitution and are therefore very difficult to reverse.
Lord Denning ‘The Reform of Equity’ "The judges do every day make law,
though it is almost heresy to say so" A famous quote by Lord Denning
mentioning about the making of the law by judges but it is usually not
mentioned every time that the law has been created , changed or reformed.
Normally in very hard cases the judges mention that the law has been created or
changed, but the law cannot be reformulated according to the wish of the court.
The law is to be defined and reformed under certain necessary norms as per the
steps of legislation.
Above we have many cases in which the gaps were to be filled; the
interpretations were to be made like the case of DPP v JONES. So the judges
do make laws but almost heresy to say so. Therefore, judges have been
upholding, declaring and making law. Thus “Although judges have traditionally
seen themselves as declaring or finding rather than creating law, and frequently
state that making law is the prerogative of Parliament, there are several areas in
which they clearly do make law" the statement holds true in almost every
sense ; that judges declare law and create laws also.
In conclusion, it appears that judges can make law and occasionally do make
law. This is controversial and some have argued that judges should not or even
cannot make law. This is controversial because many believe that for judges to
make law is to arrogate to themselves a duty that only Parliament may
legitimately perform.