History Of The Declaratory Theory Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

120189560

Candidate Number:

110703

The statement seeks to address truth or falsity, accuracy and inaccuracy of whether judges

make law. Judges are the main role in the judiciary system as they are those who are going to determine

the fairness and freedom of the judiciary and the symbol of justice. Judges are also the main person that

Who are going to apply the law in the case before them? However, there is an issue of whether judges do

make law.

The issue could be arguing are judges merely a law finders or they are the real law-makers.

Therefore, the statement can be phrased in order to know exactly what part do judges play in the

development of law in the sense that judges make or declare law. Thus, a gauge as to whether judges

do make law would depend on how far judges can legitimately make the law. Historically, the common

law tradition has always placed the judiciary at the center of things. It is the fact to the legal system that

the primary role of judges is to apply the existing law into the case he is deciding.

Therefore, judges need to find any pre-existing law that they want to apply into the case and by

virtue of that act, judges is law finders instead of lawmakers. Judges have to find the law which is

applicable into the case and not to enact the law. This is due to the fact that by the doctrine of

separation of powers, judiciary shall not interfere with the role of the legislature.

As such, judges shall not interfere with the Parliament, which is the lawmaker in the legal

system of a country. In 1345, an English lawyer argued to the court, "I think you will do as others has

done in the same case, or else we do not know what the law is." "It is the will of Justices," said Judge

Hillary, Chief Justice Stonore broke in: "No; law is that which is right." This controversy between the two

judges are still raging after six and half centuries. The problem can be phrased in modern terms is this:

Exactly what part do judges play in the development of the law? Other than that, in the case of

McLoughlin Appellant v O’Brian (1983) [1] , Lord Scarman argues that judges do create law.

By concentrating on principle the judges can keep the common law alive, flexible and consistent,

and can keep the legal system clear of policy problems which neither they, nor the forensic process

which it is their duty to operate, are equipped to resolve. If principle leads to result which are thought to

socially unacceptable, Parliament can draw a line or map out a new path. The law making power of the

judge is subordinate to that of parliament which means that the decisions made by judges must fulfill

the rule that set by the parliament.

Furthermore, Lord Browne-Wilkinson in Kleinwort Benson v Lincoln Council (1998) [2] also agreed

with his own opinion by stated "In Truth judges make and change the law. The whole common law is

judge made." By comparing the opinions of judges and academicians from early centuries until the

modern era, a lot of argument is still yet to be resolved because it is still a vague statement to come out

with a definite answer. But then, it seems that there are clear indications that judges do indeed create

new law. This is because existing laws have become outdated or inappropriate. This view was stated by

the famous common law theorist, Hart. He was a legal positivist who sees the fusion of primary and

secondary rules as being the determinant of what later become known as a legal system. But, there are

still have a lot of thinker vehemently against the law making power of judges which will be discuss

later.

First of all would have to discuss do judge make law through their role as a common law judge.

Instead of judges doing their jobs as law-finders and the feeder of justice, it is said that judges do make

new law this two fields of law which in the development of common law and the interpretation of

statutes. Nevertheless, their making power and power restricted by the rules of precedent, the

supremacy of Parliament and the rules of statutory interpretation. The authority of the common law is

found in the judgments courts deliberately given in the cases argued and decided which also known as

judicial precedent. [3] Judicial precedent is an application of precedent by judges, whether they are

developing the common law, or interpreting statutes is the main mechanism whereby judges make law.

Precedents are legal principles, [4] created by a court decision, which provides an example or authority for

judges deciding similar issues later.

Generally, decisions of higher courts are mandatory precedent on lower courts that are; the

principle announced by a higher court must be followed in later cases. This is because one of the

requirements for the operation of judicial precedent is that there must be a defined court hierarchy, in

order that courts know which decisions are binding upon them. Occasionally, judges are called upon to

give a ruling 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 Butterwort [5] lord Denning states that; "It may be in the books, but if this be so all I can say is

that the sooner we make it the better". Therefore, a judge is establishing the principle in a case that he

deciding. A judge decides not on precedent but is on principle.

Judges further make law through statutory interpretation. Statutory interpretation employs the

golden rule, mischief rule and literal rule. They are guidelines that must be followed in the interpretation

statutes which mean to reduce the entry of bias or judge’s discretion which may be unethically

motivated. Therefore, a judge formulates a legal principle as an existing part of the law and not as an

legislative innovation of his own. In general, principles are identified by showing that they are

embedded in the established rules and decisions. Hence a large number of cases heard by the courts

involve the meaning of words in a statute or in delegated legislation. It showed us that the judges make

a decision to a limited extent. This can be seen when the legislation may sometimes be ambiguous,

vague or unclear. When this happens, the court will have to decide between different interpretations of

legislation. Common law has been developed by the courts that are the judge made law. It continues to

be adapted to meet new situations and changing circumstances.

Judges must take the law into their own hands to and interpret the laws to the extent that is

reasonable and in the bounds of law and reason thus they shall generally accept responsibility of

reforming the law in the interests of clarity, efficiency and fairness.

Furthermore, why are there some thinker uphold that the judges do not make law but only

declare it. The reason is because the Constitution provides for a complete separation of judicial

power.  This is one limitation on judges because it prevents courts from exercising powers.  Dworkin, is

vehemently against the law making power of the judges. For him, there is no law beyond The Law. The

law is a seamless web in which there will always be a right answer. [6] He 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. Rights are trumps in Dworkin’s Theory, which means that if

there is any right which comes into conflict with any policy, the right must prevail. In Dworkin’s

biography, ‘Law’s Empire’ [7] , he focuses effectively on the idea that judges can never make new law

when he analyses the distinction and the differences in power between parliament and judges. Dworkin

contrasts the English legal system with that of the American when he points out that (in the English

Common Law) if parliament does not agree with or approve of the solutions offered by a judge, then

they have the power to overturn the judge’s answers. Dworkin also believes that judges never simply

apply rules but that they are there for a purpose. Every rule is underpinned by a principle or policy .Law

is not equal to rules alone. Law is equal to rules, policies, principles and a communal reality.

Legal rules and principles for Dworkin exist to express and protect rights in the legal order. For

Dworkin, the central approach within law emphasizes rights and the protection of the individual,

including the protection of minorities who are left out of the consideration of the utilitarian. A case

which also supports the statement that, ‘ judges do not make law, they only declare it" is the House of

Lords case, R v A (2001) [8] , which concerns the rights – issued in a statute – of the complainant in a rape

case. In this case the defendant appealed to the House of Lords declaring his own statement of defense

after the complainant took her case to court. He argued that the act of sexual intercourse between

himself and the complainant weren’t forced, and rather that it was entirely under her consent.

Furthermore, the defendant stated that because he and the complainant had past sexual

relationships with one another, this would exclude him from being convicted of rape. The Human

Rights Act 1998 [9] was incorporated into the trial to emphasize this idea of firmness and a lack of

flexibility in the law when it was found that the appellant’s wishes of questioning the complainant’s past

sexual relationships during cross-examination were rejected because Article 6 [10] â€“ the right to a fair trial –

would too have been breached. Therefore, in essence, the case concerns the permissibility of

questioning a complainant about an alleged recent sexual relationship between herself and the

complainant, and it shows how regardless of what a particular judge’s individual opinions on the matter

may be, the written words of a statute are not only acknowledged, but are furthermore adhered to and

respected by the courts.

In conclusion, the arguments between judges make law or declare it is an on-going debate until

now. A famous quote by Lord Denning, "The judges do every day make law, though it is almost heresy to

say so" which 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. The judges do make law, they have been

upholding, declaring and making law.

(2075 words)