Controversies Surrounding Judge-Made Law

The question as to whether there can be judge-made law is a contentious issue in the

Introduction

The question as to whether there can be judge-made law is a contentious issue in the English law. There are two reasons for this. First, the doctrine of separation of powers requires that each organ of the government limit itself to its own functions and not interfere in the functions of another organ. Law making is the function of the Parliament and not the courts. This separation of powers has been accepted by the judiciary as well. For instance, in DPP of Jamaica v Mollison, the strict separation of powers between the judiciary and legislature was accepted by the court as one of the important aspects of the English legal system.[1] Second, the doctrine of parliamentary sovereignty is applied in the UK, which means that the law made by the Parliament is supreme. In other words, the judiciary cannot review the law made by the parliament or make new law that conflicts with the Parliamentary legislation. In spite of these limitations on its law making, judiciary in England does from time to time make law, or rather give an original precedent. Due to the doctrine of stare decisis, such precedents are binding on the courts in England and this leads to the making of new law by the judiciary. Therefore, it would be incorrect to say that “there is no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable.”[2] Under the Constitutional Reform Act 2005, the court has the “power to determine any question necessary to be determined for the purposes of doing justice in an appeal to it under any enactment”

This essay argues that judges also exercise law making functions, sometimes to the point of being ‘activist’, and that in many instances judges have made new laws on issues that may not have been legislated upon by the Parliament.

Judge-made law – A reality

It is noteworthy that under the English legal system the judges make law as a proper source of law as per the doctrine of stare decisis, wherein the law made by the higher court must be followed by the subordinate courts in cases before them. The English legal system sees the judge made law as a source of law.[4] The common law is also for its most part a judge made law as the law has been evolved by the judiciary over a period of time.[5] The ability of the courts to make law is seen as an important part of the development of the law. Therefore, in the 1966 Practice statement issued by the Law Lords, it was provided that court must depart from its own precedent if the following of the precedent acted as an impediment for the development of law.[6] This is in contrast with the earlier judgement of the court in Young v Bristol Aeroplane Co. Ltd,[7] where the court held that barring certain exceptional circumstances, the court was bound by its own precedent. Therefore, it is important to note that the development of the law is seen to be an important part of judicial function.

An argument is made out that in the UK, judges do not exercise law making functions and that rather they exercise law declaratory functions. However, considering that much of the development of the common law itself is owed to the judge-made law, it is debatable whether it would be appropriate to consider that English judges merely declare law and not make it. Regard can be had to judgements of English courts that have created or laid down some original principles of law. In Salomon v Salomon Co Ltd.,[8] the House of Lords laid down the principle of corporate personality that the company has its own legal personality separate from that of its members. In Donoghue v Stevenson,[9] the court evolved the neighbour principle that otherwise had no parallel rule in any legislation. In Rylands v Fletcher,[10] the court evolved a new principle of strict liability, which otherwise was not provided for in any legislation. However, the House of Lords evolved the rule of strict liability to respond to cases of damage caused where remedy was not available in either the negligence law or the nuisance law. These cases demonstrate that judge-made law has been a reality within the English legal system for a long time. In recent cases as well, it is seen that at times the courts do apply the original law-making function.

In R v R the offence of marital rape was recognised by the court despite there being no such offence in the English law at the time and the husband was penalised for raping his wife, in a judgement which was clearly ground breaking at the time.[11] In Airedale NHS Trust v Bland,[12] where the question of Euthanasia was involved and there was an appeal to allow discontinuation of life-sustaining treatment and medical support for an individual in a vegetative state, the court allowed the removal of the life-sustaining treatment, although, the English law as such does not permit euthanasia. R v R is an example of active law making by the judiciary, where the judiciary lays down the principle of law without making a reference to the power of the Parliament. On the other hand, passive law is also done by the judiciary, in that it restrains itself from declaring a principle of law and provides instead that the Parliament must legislate on the same. Thus, in C v DPP, the House of Lords held that it was not empowered to alter the common law presumption on criminal responsibility on individuals who are under 14 years of age.

These cases demonstrate that at times the courts do make new and original laws in absence of similar provisions in the legislations or common law. At the same time, it is important to consider the objections to judge-made law.

One of the reasons why the argument is made out against judge-made law is also because it is considered to be undemocratic, as explained by Sir Philip Sales:

The legislature is a body established precisely to make law. It is constituted so as to give effect to democratic principle and to afford representation for the people. It uses procedures designed to give careful consideration to a wide range of interests and representations. Judges, by contrast, represent no-one.

Therefore, there may be a valid argument against the judiciary taking on the law making function on itself. This argument has also been made by the judiciary itself at times. For instance, Lord Diplock has stated that: “Parliament makes the laws, the judiciary interpret them.”[15] The plain reading of this statement would imply that the function of the courts is not to make the law, but to interpret it. However, Lord Neuberger has contended that Lord Diplock’s views to be rightly interpreted would mean that judiciary should not interpret the law the of the Parliament in any way contrary to what the Parliament has intended, or in other words, judiciary can make law when there is no parliamentary law on the issue.[16] Another argument that is presented against judge-made law is seen in the judgement of Wilson v First County Trust Ltd (No 2), where the court held that the “Parliament is charged with the primary responsibility for deciding the best way of dealing with social problems. The court's role is one of review.”[17] As per this argument, judges should not make the law because unlike the Parliament, the judiciary is not adept with dealing with social problems.

However, regardless of these arguments against judge-made law, the fact is that judiciary does from time to time make law. In other words, judiciary does exercise an original precedent making function in certain situations or cases. At the same time, it is seen that where there is a legislation, the task of the judiciary is to interpret the legislation as per the intention of the Parliament. For this purpose, the judiciary has also evolved certain rules of statutory interpretation, which are also discussed here.

The literal rule of interpretation is applied by the judiciary to interpret the legislation in a way that the intention of the Parliament is given effect by it. Thus, in the Sussex Peerage Case,[18] the court held that statutory law must always be construed as per the intention of the Parliament. The literal rule is applicable in cases where the statute is precise and unambiguous and its provisions do not present conflicting and vague constructions, and in such cases, the judges can apply the natural and ordinary sense to the words in the statute.

The golden rule of interpretation is applied where the statute or its provisions are imprecise, vague or ambiguous. The golden rule may also be applied in cases where if the judges apply the ordinary and natural meaning to the words, then the ultimate result is absurd. Lord Wensloydale’s statement in Grey v Pearson,[20] is the classic enunciation of the golden rule, where he emphasised on the need to give effect to the intention of the Parliament by giving the meaning to the ambiguous words that lead to the intention of the Parliament being applied in the construction of the statute.

The purposive statutory construction approach can also be applied by the courts to give effect to the intentions of the Parliament, albeit in a way that is different from the literal approach.[21] Lord Browne-Wilkinson described the purposive statutory approach as that which uses extraneous material relating to the background of the legislation in order to give effect to the intention of the legislature.

Each of the rule of statutory interpretation is focused on giving effect to the intention of the Parliament and in that sense, the rules of interpretation of statutes are aligned to the doctrine of parliamentary sovereignty.

Conclusion

The question as to whether judges make law is a contentious issue. There are objections to judge-made law because it is seen to be undemocratic as compared to legislation and also encroaching upon the domain of function of the Parliament. However, judges do make law albeit without disturbing the doctrine of parliamentary sovereignty or encroaching into parliamentary functioning. Interpretation of statutes is mostly done with the objective of giving effect to parliamentary intention. Judiciary has evolved rules for ensuring that in different circumstances, the intention of the Parliament is always given effect to. Thus, even in situations where the statute is unambiguous, the court always tries to give the construction to the statute which is aligned with parliamentary intention. At the same time, a number of cases show that court has exercised original law making powers or has actively made a new law, which may not have been provided by the statutory law or the existing common law. Thus, judges do make law.

Bibliography

• Bennion F, Bennion on Statutory Interpretation (5th edition, LexisNexis 2008).
• Masterman R, The Separation of Powers in the Contemporary Constitution: and Independence in the United Kingdom (Cambridge: Cambridge University Press 2010)
• Neuberger ,‘Judge not, that ye be not judges: Judicial decision making’, F A Mann Lecture 2015, accessed < https://www.supremecourt.uk/docs/speech-150129.pdf>
• Sales P, ‘Judges and Legislature: Values into Law,’ (2012) 71(2) Cambridge Law Journal 287.
• Slapper G and Kelly D,The English Legal System (Oxon: Routledge 2009)
• Vong D, ‘Binding Precedent and English Judicial Lawmaking’, accessed 318.
• During the period of my learning, I have come to be familiar with the English legal system, which in some ways is very unique and different from other legal systems. The English legal system has a very important place for the common law. In general, common law is the judge-made law. At the same time, the English legal system involves the doctrine of parliamentary sovereignty, which is focused on giving predominance to the law made by the legislature. In other words, judge-made law should be in consonance with the parliamentary law, and it should not be opposed to it.
• I have also learnt about the doctrine of separation of powers and how it is applied in the English legal system. With regard to application of separation of powers to the executive and the legislature, the application is not strict but there is a lot of overlapping of functions between the two organs of the government. However, with regard to the judiciary and the other two organs of the government, the doctrine is applied strictly, with the legislator having the law making functions and the judiciary having the law interpretation function only. The statutory interpretation rules as evolved by the judiciary, that is, the literal rule, the golden rule and the purposive rule, are all aimed at giving the interpretation to the legislation as per the intention of the legislator so that the legislative will prevails. In other words, the judiciary must not interpret legislation in a manner that gives the construction to the legislation that is not intended by the Parliament or is opposed to what the Parliament intended.
• At first glance, it would appear that judges do not make the law at all and they merely interpret the law as made by the legislator. However, that is not the correct state of affairs and in actuality English judges do make the law as well. This is done where the Parliament has not legislated on the given situation, so that the judges are not really making a law contrary to the legislative will but responding to a situation that needs a resolution by the judiciary. This is how principles such as ‘strict liability’ (Rylands v Fletcher), ‘marital rape’ (R v R), and ‘neighbour principle’ (Donahue v Stevenson) evolved in the first place.
• When I first starting working on this assignment, there were a few areas that I was admittedly weak at theoretically. However, I feel that over the course of this assignment I have learnt a lot and I have been able to respond to the feedback given on my draft by reading more and allowing myself to reflect and analyse on what I have read or studied. There were many questions that I had about the English legal system, that have been answered to some extent during the course of this assignment. Therefore, I think that this assignment was a good learning exercise for me.
• Roger Masterman, The Separation of Powers in the Contemporary Constitution: and Independence in the United Kingdom (Cambridge: Cambridge University Press 2010) 27.
• Willis v Baddeley [1892] 2 QB 324 (CA), [326], per Lord Esher MR.
• David Vong, ‘Binding Precedent and English Judicial Lawmaking’, accessed 318.
• G Slapper and D Kelly,The English Legal System (Oxon: Routledge 2009) 5.
• Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.
• Sir Philip Sales, ‘Judges and Legislature: Values into Law,’ (2012) 71(2) Cambridge Law Journal 287.
• Duport Ltd v Sirs [1980] 1 WLR 142, 157 per Lord Diplock.
• Lord Neuberger ,‘Judge not, that ye be not judges: Judicial decision making’, F A Mann Lecture 2015, accessed < https://www.supremecourt.uk/docs/speech-150129.pdf>, para 41.
• Francis Bennion, Bennion on Statutory Interpretation (5th edition, LexisNexis 2008).
• Pepper (Inspector of Taxes) v Hart [1993] AC 593.
• Notham v London Borough of Barnet, [1978] 1 WLR 220.
• Francis Bennion, Bennion on Statutory Interpretation (5th edition, LexisNexis 2008).