The concept of judicial lawmaking gives an initial idea that judges do to some extent

have considered making the law which is strictly the duty of the parliament as stated in
the books. However, there are some instances where, to provide justice, judges have
considered law making. In the continuing general points, I will discuss the instances in
which judges made law and to what extent they can go to carry out their duty at law.

Historically, it is up to the parliament to make the law and for judiciary to give effect to
that law, but this point in relation to the English common law system has been debated
a lot. Sir William Blackstone gave the 'Declaratory Theory' in which he emphasized that
the role of judges is to declare what the law is and not to make it. Judges are not
elected by the people rather appointed by the government and therefore they cannot
overtake the role of the parliament. In the case of Midland Silicone Ltd v Scruttons Ltd
[1962], Lord Simonds gave an example of this approach.

This argument can also be supported by the theory of separation of powers which
clearly states that the absolute law-making body in UK is the supreme parliament and
the role of the judiciary is to dispense the relevant laws in the courts on relevant cases
requiring them. All the pillars are to act in their own dictated jurisdictions.

Judges cannot pend the cases when a law is not available for a case's decision. They
cannot comment that the defendant should wait for the parliament to pass an act on the
particular issue and then he will rule on it. So, what happens when law is not available?
Judges do make the law to keeps pace with changes in social and economic conditions
and remain sufficiently flexible to accommodate new situations. A perfect example is the
case of Gillick v West Norfolk and Wisbech Area Health Authority [1986] where no
statutory control or previous common law rule was present thus the house of lords
made new test to assess the capacity of minors under the age of 16 to give a valid
consent to receive contraceptives and hence it was decided that minors of age 16 were
mature and wise enough to receive contraceptives without parental consent. This case
is an example of advancing medical technology and treatment which was nonexistent
when the previous law was made hence the judges have to amend the law and to some
extent make law in order to deal with such situations. In the case of Mcloughlin v O'
Brian, Lord Scarman said that the utmost duty of judges is to dispense justice and, in
the process, they sometimes do make law.

Common law and the law of Tort are sections of law where the major chunk of the
decisions given in cases are judge made laws. Lord Nicholls also asserted to judges
making law in the case of National Westminster Bank v Spectrum Plus [2005] 2 AC 680.
Judges have made law in many cases in order to dispense justice. Judges make law in
situations identified by Lord Bingham in 1997 e.g. where the public has coped up their
mind according to wrong perception of law, where a previous precedent is inappropriate,
outdated and archaic in the changing social conditions and therefore requires
amendments because the parliament is unable to give priority to those areas of law and
where the issue raised is wholly new and the judges have not ruled before on the issue.
This provides the law to be stable, consistent, flexible and certain thus the parties in the
cases receiving justice.

In the case of R v R (Marital Exemption) [1992] in which the House of Lords abolished a
250-year-old rule that a man could not be liable for raping. Instead, the assumption was
removed and held that if the wife withdrew consent to sexual intercourse then the
husband will be held liable for rape and that it was no longer acceptable in current social
conditions. Lord Dyson supported this decision of judicial law making by stating that this
issue was widely recognized and long overdue in the English legislature. This
amendment in law was later included in legislation in the sexual offences act 1972 and
now stands as a binding law upon all. In the case of R v Brown [1993], The House of
Lords held that homosexual partners who inflicted harm on each other and others with
their consent could be convicted of assault occasioning actual bodily harm (s.47 OAPA).
This was also a judge made law as this situation had not risen before this case.
However, the judges do not exercise their law-making power readily and only use it
when deemed necessary. They do this to give effect to the doctrine of binding precedent
and to make the law more predictable and consistent. Following the binding precedent
keeps the common law stable, certain and flexible and discourages the judges from
taking over the role of the parliament therefore in the case of R v Nicklinson [2014], the
judges refused to step in, even though they thought that there was a need for change in
the law regarding the matter. The case was about the legal ban on voluntary euthanasia
(practice of intentionally ending a life to relieve pain and suffering). The Lord Chief
Justice made clear that he felt this was an issue on which the courts should not be
legislating and such cases should be dealt with by the parliament due to the moral
values involved

In the end, it can be seen that judges have made law where they think it is necessary
for the functioning of the society and to avoid rigidity in law. Judges do strictly follow the
doctrine of binding precedent but this approach of the judges provides a balance
between predictability and flexibility in wholly new situations. Thus, it can be said that
judges do develop the law for good and justice.