There was never a more sterile controversy than that upon question whether judge makes law. Of course he does. How can he help it “. (Lord Radcliffe).
The thesis of this paper is how judges help molding of law through their decisions and help future of course of action by law making body i.e. the parliament. The legal systems of United Kingdom owe their origin to judges who made laws in the course of their decision making. Until seventeenth century, this was the only source of law known as common law or case law. An expression made by a judge as a basis of his judgment becomes the precedent making it binding on future decision making until its validly controverted by another judge. This principle of precedent is also known as ‘stare decisis’. This precedent should be created by a high ranking court and not from the courts of first instance. They are supposed to follow strictly the already existing law and precedents. Often these courts would be engaged in fact finding since they are not expected to hear full legal arguments of the parties. The courts administration documents and reports the decisions from 1865 in U.K. It is called now Incorporated Council of Law Reporting for England and Wales. It brings out The Weekly Law Reports and The Law Reports. The decisions that are taken as legal precedents shall have ‘ratio decidendi’ behind them. The ratio decidendi must be related to the law and not on factual findings. It can not also be ‘obiter dictum’ mentioned as a passing reference while deciding the case and shall have no legal basis for future decisions. The ratio which is binding shall have legal principles and rules considered for finding a solution for the problem in the case. The ‘obiter dicta’ however are treated as persuasive authority which later judges can use them for arriving at their decisions but are not bound to treat them as precedents.(UK law online)
Precedent has a very important role in the common law. It ensures certainty and consistency and logical progression and development in the law. At the same time it can be rigid and also complex – what is “the law” on a subject may be very difficult to find or to state as it is spread across many cases. So, many countries (especially in Continental Europe) prefer a codified system in which laws are set out in legislation and cases which apply them may be illustrative but do not become binding. The law is also easier to find and to state and is rationally prospective rather than based on the chance event of litigation, which may give rise to laws based on extreme or unusual situations or unevenly argued cases. For example, here is the offence of murder in US Federal Law. By contrast, the law of murder in England is contained in several cases, and even having read them there may be room for doubt. As for English law, the classic definition of murder is considered to be that given by Lord Chief Justice Coke who (writing in the early seventeenth century) said: “Murder is when a man of sound memory and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the King’s peace, with malice aforethought, either expressed by the party or implied by law, so as the party wo, or hurt etc. die of the wound or hurt etc .within a year and a day of the same.” (UK Law online)
Blackstone stated in eighteenth century that court decisions were mere evidence of common law. (Commentaries pp 88-9) Later Lord Esher said in 1892 that there was no judge made law as such since the judges did not make law but only applied prevailing law not previously applied authoritatively (Willis v Baddeley) However these views are refuted by late professor Cross stating
“a rule stated in a precedent is law properly so called and law because it was made by the judges, not because it originated in common usage, or the judge’s idea of justice and public convenience” (Cross R 1991 p 28)
Cross holds that Lord Esher’s view that application of existing law to new circumstances actually is similar to statement of a new rule of law But for the judge made law, the development of legal doctrine would not have taken place. If what judge states is only of evidentiary value, no other judges can be compelled to follow it or overrule it. The interpreters of British constitution have often repeated that judges do make laws. (Cross R, 1991 P 29, 30) Lord Radcliff’s statement “There was never a more sterile controversy than that upon question whether judge makes law. Of course he does. How can he help it” however raises the question of merit in the declaratory theory of law and theory of precedents both as evidence of law and as law itself.
” When a judge decides a point of law, he is declaring what he finds the law on that point to be. He is not saying what he thinks it ought to be but what he believes it is. In giving voice to his opinion as to what the law is, he may added some thing new to the existing corpus of the law. In fact, unless he has simply restated on existing principles or applied it in a totally predictable way to new facts, he will have done so. Many decisions on points of law add something new in this sense and can therefore be said to be making law.” (Zander, 2004 p 298,299)
A judge’s function is to declare the law and it is observed by others as if he is declaring the existing law with modifications or changing the law itself. Therefore it is correct to state that both the declaratory theory and law making theory as stemming from a judge. However when a judge-declared law is proved to be incorrect, it can be reversed on appeal or his ratio decidendi will be overruled in a later case by a higher court. Such a precedent will stand the test of time for decades by subsequent judges or it may be reversed even after fifty years. Hence theory that judge made law as a form of evidence is advantageous leading to the theory that every principle emerging out of a decision is capable of being changed though it may have been well settled for quite a long time. Even a rule declared by House of Lords can be changed by them later (Zander 2004 p 299). This is what Lord Goff (1997) said it in even stronger terms.
” Seen in the perspective of time all statements of the law, whether by legislature, or by judges, or by jurists, are no more than working hypotheses. They are quite simply, temporary approximations which some people in their wisdom have found to be convincing at certain points of time. To the lay man, this may appear a startling proposition. The layman thinks of the law as inherently predictable, clear, precise, certain, even rock-like in quality. It is in fact nothing of that sort.”(Lord Goff 1997 p 79, 80)
When a rule of law is declared its effect becomes retrospective and the person affected by earlier interpretation can bring forth fresh action for remedy due to injury suffered by him as a result subject to the doctrine of res judicata and limitation of time. Hence theory that precedent as having evidentiary value has been proved to be correct by the fact they can be changed any time. It may appear that importance of individual decisions is overemphasized and without realizing that it has time to mature, there is a tendency to overtly and positively reacting to any such latest decision almost immediately as if it is the law for ever. This is what Lord Radcliffe “(1968 pp 261-217) denounced as a risk:
”I cannot help thinking that there is a tendency today to give too much importance to particular decision…..before they have proved that they have in them quality to lead. There is too much forcing of unripe growth………. It is not a question of playing it safe………….. I do not regret this counsel of reticence. It accords well with the methodology of our law making. Just as under our system a court decision is formed out of work of those who prepare a case, those who argue it before the court and those who ultimately explain and record their views, sa a decision of even a final court, has only begun its life as a constituent of the full corpus of the law. It is a mistake, just because it is final, to think that matter is then closed. On the contrary, it has been handed over to the care of the profession. It will be chewed over barristers and solicitors, commented on in law journals, made the subject of moots and law lectures, reviewed by writers of the legal text books. It will be read in the light of previous decisions, upon which itself it forms a text. In the end, but only in the end, general legal opinion will come to assign to it a more or less determined place in the whole compendium of law, important or unimportant, formative or dead end, malleable or rigid. Until a decision is subjected to a process of this kind, in the course of which indeed it may come out wearing a different air from that with which it entered and serving a purpose hardly intended by its authors, I should be reluctant to class it as a leading authority.” (Lord Radcliffe 1968 p 216-17)
Hart and Sacs M (1958 p 587-588) have catalogued the values created by the system of precedents, as follows.
Private ordering: (i) it enables people to plan their activities with confidence relying on the robustness of the law. (ii) the private counsel is equipped with stable tool of reasoning. (iii) it encourages remedial measures through private settlement so as to minimize prospect of a different judgments for the same law. Fair and efficient adjudication: (i) from the litigants’ angle, expediting litigation and avoidance of litigation cost by resorting to court for every aspect of the case already decided on similar matters is made possible. (ii) from judicial point of view, it does not have to reexamine denovo every aspect of every case. (iii) it discourages rush of case filing every time a bench personnel is (judge) changed. (iv) as fairness to litigators, it assures uniformity of decision at any given time. (v) it makes judicial process impersonal without giving it a personal color or a tinge of discretion. (vi) it accords respect to conclusion given by the previous judges. & (vii) it avoids disappointments of expectations from private discussions. (Hart & Sacs M 1958 p 587-88)
“Public confidence in the judiciary: The desirability of maximizing the acceptability of decisions, and the importance to this end of popular and professional confidence in (1) the impersonality of decisions and (2) their reasoned foundations, as manifested both by the respect accorded to them by successor judges and by their staying in power. (b) The necessity, considering the amorphous nature of the limits upon judicial power and the usual absence of an effective political check at the ballot box, that the judges be subject to the discipline and the restraint of an obligation to build upon the prior law in a fashion which can withstand the test of professional criticism.” (Hart & Sacs M. 1958 p 587-88)
Zander (2004 p 303) states that the doctrine of precedents and law making by the judges though are beset with the following complication should be balanced against their positive aspects. The problems are (a) giving too much importance to individual decisions. (b) the new law that emerges comes without notice to those who are going to be affected. (c) it is not immune to bad precedents remaining unchallenged. (d) its backward-looking and conservative nature makes the system of precedents to respond slowly to the fast changing needs. (e) once the highest court decides and sets a precedent, it remains the law whether fitting the situation or not. (f) There are numerous precedents for the same subject matter making it difficult for the lawyers to ascertain the actual law. Besides, the judges while giving several reasons for the decisions, technical problem arise to reduce them to ratio decidendi and when different judges give separate decisions in a case, the same problem of ratio occurs. (g) The precedents are generated by the reason of minute differences in facts between different cases without giving credence to general principle and policy. ( Zander 2004 p 303)
It could be seen from the following excerpt that Parliament has been the dominant form of form law making. But it appears to be not entirely dependant upon political manifesto. It rather depends on the other institutions deriving inspiration from precedents.
“(a) The sources of legislation: The belief that most government bills derive from its manifesto commitments is mistaken. Research established, for instance, that only 8 per cent of the Conservative government’s bills in the period from 1970 to 1974 came from election commitments and that in the 1974–79 Labour government the proportion was only a little higher at 13 per cent.4 The great majority of bills originated within government departments, with the remainder being mainly responses to particular and unexpected events such as the Prevention of Terrorism (Temporary Provisions) Act 1974 in response to the Birmingham IRA bombings, or the Drought Act 1976”( Excerpts Zander 2004)
In view of the foregoing discussions, it can be safely surmised that role of judges in law making has been positive and the doctrine of precedents facilitates law making process. While adopting the policy of stare decisis, what Lord Radcliffe has said about the positive and negative aspects of precedents should be kept in mind and the responsibility of setting up good precedents lies with the judges in U.K.courts which draw their sources from common law or case law. Of course only when judges are prompted, are they compelled to set a precedent and not when a bad precedent remains unchallenged or not when a subject matter or state of a law remaining unchallenged from its original position of a statute. It is also possible for altogether a new unexpected law to emerge after a lull for a number of years as a result of positive role of judges in U.K.courts. Judges also have role to interpret the legislation of the parliament and are competent to declare a statute as bad if it is really so. But they are in a position to do only when approached and not suo-moto.
- Commentaries 13th edition. volume I, pp. 88-9
- Cross R and Harris J.W, Precedent in English Law 4th edition 1991 p.28, 29, 30
- Hart Henry and Sacs M.A Albert “The Legal Process” (tentative edition 1958 mimeographed), pp 587-88
- UK Law online “The sources of the legal systems” accessed December 15, 2007 < http://www.leeds.ac.uk/law/hamlyn/sls.htm>
- Lord Goff, 1997 “Judge, Jurist, and Legislature; Denning Law Journal, 1997 p.79 at p 80
- Lord Radcliffe, “Not in Feather Beds” 1968. Pp.216-17.
- Willis v Baddeley (1892) 2 QB 324 at 326
- Zander Michael “The Law-Making Process” 2004 6th edition p 298, 299, 300, 301, 302, 303 Cambridge University Press
- “Excerpts” Zander Michael “The Law-Making Process” 2004 6th edition p 298, Cambridge University Press
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