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Judicial Creativity Is Basis of Judges

Info: 1389 words (6 pages) Essay
Published: 17th Jul 2019

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Jurisdiction / Tag(s): UK Law


This essay will argue that judicial creativity is the basis of judges’ practice of the common law (‘judge made law’) and also has an influence on enforcing positive law enacted by Parliament. Furthermore, it will be argued that this is not a discretionary misuse of power, but a basic function of the courts as an organ of state.

Distinguishing Law ‘Applying’ And Law ‘Making’

The application of law is when a court or judge simply enforces a prior legal principle in its entirety, as derived from an established source of law. This may include the application of precedent or literal applications of statute.

For judges to make law, their approach to an area must seek a result which is in some way incongruous with the result prescribed by prior sources of law. This includes departures from precedent or teleological interpretation of statute.

Does Precedent Bind Judges To Applying The Law?

‘Precedents serve to illustrate principles and to give them fixed certainty’ and as such it would appear that they act to limit the capacity for judicial creativity. The London Tramways decision supported this view of precedent by binding the House of Lords to its previous decisions and affirming the idea of stare decisis within the common law. However, the modern doctrine of precedence can be seen to have departed considerably from this position, especially with the advent of the Practice Settlement 1966, which contra to London tramways, allowed Lords to depart from its previous decisions. In the present state of affairs, Supreme Court judges ‘have considerable leeway to expand on or distinguish the past conclusions of their colleagues’.

A theoretical issue which casts doubt over precedent as a limit to judicial creativity is that for a given set of facts there may be two precedents, apparently of equal viability, which are irreconcilable in terms of outcome. This can be observed in Adams v New Jersey Steamship where a claimant sought compensation after a theft in his room rented on a steamship. The court had to decide which of two precedents these facts were analogous to (theft from a train or hotel). As either was equally viable it is inevitable that only judicial creativity could deem one or the other the appropriate authority.

Legal Theories Supporting Application And Creation

The legal theories of natural law and legal positivism support the idea of judicial application and judicial creativity respectively. The theory of natural law asserts that all law pre-exists codification. Natural law is considered to be a ‘higher law’ derived from the essential rules which govern human coexistence. Proponents of natural law believe therefore that in common law, legal solutions exist as objective moral norms which may be found through reasoning. As such all progression in common law can be seen as applications rather than creations, even when a court acts without express provision of statute or precedent. An example of this was Shaw v DPP in which the appeal of a man publicising prostitutes in a magazine was dismissed on the principle that he’d conspired to ‘corrupt public morals’, an innovative approach which proponents of natural law would believe to be applied from the moral norms.

Contra to the position of natural law is that of legal positivism which states that morality and law are distinct and that law does not exist outside of human enactment. Natural positivists would regard the ruling in Shaw differently to natural lawyers. They would suggest that the judges had posited new law, derived not from morality, but social norms. This is the idea of the ‘activist’ judge, who facilitates the adaptation of the common law to current social consensus.

Is It Possible For Judges To Exclusively Apply The Law?

For judges to act solely as applicators of law they must be ‘political, economic and social eunochs’. They must always ask what the law requires and not what justice requires. It is argued that as judges consistently come across ‘moral, political and social issues in the cases that come before them’ it is impossible for them to act in such a mechanical capacity, especially seeing as the common law is not subject to express codification. Instead, it is required of judges to ‘have regard to common sense, legal principle and public policy in that order’ as opposed to purely legal principle. It can be said that a judicial decision which was reached via consideration of political concerns and common sense (the judge’s personal principles) is in some capacity creative. It is argued that judicial creativity is a product of the political role of courts. The interaction of courts with the law and governments (in a checking capacity) provides the essential ‘legal framework’ for government power, without which there would be no legitimacy.

The Interpretation Of Law: Application Or Creativity

In making decisions (with regard to statute or the common law) judges must give regard to sources of law. They may employ a ‘meticulous examination of the language used’ (a literal application of law) or alternately pay ‘more attention to the apparent object’ of the source. The latter such reading was evident in the Ghaidan v Godin-Mendoza case in which the House of Lords (under S.3(1) of the Human Rights Act 1998) reworded a clause in the Rent Act 1977 for the purpose of granting the homosexual partner of a deceased tenant the same rights as a heterosexual couple (though this was not expressly provided for in the act). It can be argued that in this instance, by going beyond the defined limits of a statute the court acted in a creative capacity, in the interests of present consensus. In this case it could be argued that similarly to Shaw v DPP, the court acted not only as law makers, but ‘policy makers’ as well. This role has been described as that of the ‘dynamic’ judge.

In the area of statute law at least, judicial creativity can be regarded as the exception rather than the rule. Constitutional tools such as the Human Rights Act have availed judges with an opportunity to approach legal problems more creatively but for the most part, as stated by Lord Diplock, ‘When the meaning of the statutory words is plain and unambiguous’ judges should not forbear from enacting them for fear that ‘doing so would be inexpedient or even unjust or immoral’.

Judicial Perspectives On Whether Judges Make Or Apply Law

The division among judges on the issue has been described as a ‘pervasive dichotomy’ which encompasses those who support ‘doctrinal certainty’ and those whose support ‘doctrinal innovation’.

A judge who prefers the more restricted judicial role is Lord Reid, who in Knuller said of the decision in Shaw, that although he had dissented in that case he thought that the precedent must still ‘stand and apply to cases reasonably analogous’. Interestingly he refused to adopt a creative stance to reverse a decision which he disagreed with as it was made in a creative capacity.

In favour of ‘doctrinal innovation’ Lord Scarman asserts that the courts are one of ‘two law making institutions’ within the constitution. He concedes however that the courts will leave overtly political concerns to Parliament.

A final perspective which appears to be close to a synthesis of the two is the view of Lord Radcliffe. He states that if judges at least purport to adhere to the idea of ‘doctrinal certainty’ then ‘respect’ for the common law ‘will be greater’. He states that judges should ‘keep quiet about their legislative function’ as the ‘image of the judge, objective, impartial, erudite’ is one which bears the law in higher esteem.


On balance it is clear that judges often create the law, especially when issues of moral or political contention are at stake. Furthermore, it is not the role of the courts to shy away from these issues and it is their flexible approach to law making which allows the common law to adhere to social consensus.

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