do judges make law

Introduction
In 1892, Lord Esher in Willis V Baddeley has said 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.”
Generally, the position judges adopted is to interpret the law instead of concerning with the justice of their decisions. In modern tie, there is still existence of powerful ideology that denies any creative role to judges. The popular view of the judges is not to give the judge a law-making role, they are supposed to do justice but not make it up. Here, we are concern with the issue do judges make law? Let’s assume that if they do, to what extend do they make law? Statutory interpretation plays two substantial elements that direct the decision of the judges in court. To the extent of understanding the rationale of the decision-making by judges, we have to profoundly discuss these two elements which will unfold the arguments whether judges make law. Statutory interpretation is a process of interpreting statutes by the judges. The word of interpretation indicates that the Act of Parliament is challenging to be understood. However, the definitions of statutes have had very specific words but indeed the judges would still need statutory interpretation to help them.1 This is because, even the words used are very specific, there are still many disputes arising where the words contained ambiguity and vagueness when it is not clear or does not cover a certain situation. It is not possible for the judge to ask the Legislature to amend an act just because it does not cover a certain situation In order to help the judges with general words, Parliament has also passed the Interpretation Act 1978 which sets down some general rules for interpretation which consist of literal rule, golden rule and mischief rule.2
Judicial Precedent The system of judicial precedent is based on the maxim of stare decisis which means “standing by of previous decisions”3 which the rationale lies in treating case alike. In fact, it requires a judge in a lower court to be aware of a legal principle set by a higher court in a similar case, and this previous decision must be followed 4 in order to provide consistency and fairness. It is to be understood that following a past decision is a necessary procedure in daily affair. By fact of the biding precedents, the judges could bare the advantage of accumulated experience of the past plus having the effort to re-think the same issue again each time the problem arises and the solicitors and barristers could be able to give more accurate advice to their clients. However, it is essentially important for the judges to be aware as to which part of the previous decision is binding and which is not. The principle of law on which a decision is based in a case is known as ratio decidendi, a Latin maxim meaning “rationale of the decision”5. It is a principle used when a judge delivers judgment in a case he outlines the facts which he found to be proved on the evidence and then apply the law to those facts and gives a decision with the reason which will form a binding precedent that binds the lower court in the hierarchy. Conversely, Obiter dicta in Latin term “other things said” is the judge made a remark how would the decision might if the facts of the case has been different. The only binding part is the ratio decidendi while an obiter dicta is not binding in latter case since it was not relevant to the issue stated in the case but it becomes persuasive precedent to be considered by the judge while making decision.6 A difficulty would arise when judge makes a decision the ratio decidendi will not always been told and it will leave for the future judge to decide the ratio . Hence, there would be disagreement as to which is ratio and which is not or there might be more than one ratio.
In cases where the legal principle involved is the same with similar fact, judges are likely to apply the binding precedent. In contra, What if the judges find that the present case is conflicting to any previous precedent? It would be problematic for the judge to produce a less controversial decision that could be accepted by the majority. There are two main theories of precedent, one of the principles which has been greatly accepted known as declaratory theory of law, which holds the idea that judges are only ‘law finders’, they do not create or make the law but only to declare what the law is which was famously explained by William Blackstone during eighteenth century. He remarkably maintained that the role of a judge is to determine the law “not according to his own private judgment, but according to the known laws and customs of the land”. The judge, “is not delegate to pronounce a new law, but to maintain and expound the old one” 7
The legal write David Kairy opposes William Blackstone’s view that judges have no real freedom to make their decision. The fact is that laws do change, the creation of new law comes from the abstraction of old principles which originated from somewhere. Further, the senior law lord, Lord Reid in his speech in 1972 rejected the notion that judges do not make law. He stated declaratory theory was a “fairy tale” and ‘We do not believe in fairy tales anymore, so we must accept the fact that for better or worse judges do make law.’ 8
Occasionally, judges are summoned to make a decision where in the circumstances there seems to be no guiding principles. Although Blackstone and other supporters of the declaratory theory would disagree upon this, the fact that judges do make and change law is undeniable as we look into the case of Donoghue v Stevenson9, the landmark decision in Tort law which represents a significant change in the developments in law. In this case, on 26 August 1928, Mrs Donoghue went to a café with her friend who bought her some ginger beer which was in an opaque glass. Later when she poured the rest of her bottle into glass, a decomposing snail came out which caused her subsequently suffered shocked and illness. She sued the manufacturer which on the time a remedy would be rewarded caused by a defected product. Nevertheless, there was a legal issue to be considered which Mrs Donoghue was owed no contractual duty by the manufacturer even the café owner since she did not buy the drink herself. The case eventually went up to House of Lords nearly 5 years later where the judges were asked to change the law four years after the incident happened. The House of Lords held that the manufacturer of ginger beer, David Stevenson must have duty of care to the end consumer of its products to make sure that there was no foreign object in the bottle and it was breached. Therefore, Mrs Donoghue is entitled for the compensation of damages.10
By looking at this case, it could be observed that even though the judges are not part of the legislature, they may still have a hand in the process of making law. Up to this point, we have clearer point of view in two aspects, where judges do create law when they found that the law was wrong and make a decision which has retrospective effect and judges declare law where there is a “friction” view stated that the law has always been there and no one knew, the judges merely find it and “declare” the law. Lord Denning went further in ‘The Reform of Equity’ where he says that “The judges do every day make law, thought it is always hearsy to say so”
Lord Mackay LC in the Times Law Awards ceremony 1977 said that the duty of the judges is not to seek to rectify perceived inadequacies by the use of creative interpretation, instead it is to apply the law as he finds it. Furthermore, he stated that where there is a gap in the law our judges are required to take account of precedent but where this is unclear he must decide the best way to proceed and the result may be a decision which is in some way innovative… but fundamental principles were always part of the law. Thus he believes judges find law by applying already existing principles.11
When in certain situation, there is no binding precedent to be followed, judges still have to decide an outcome for a case. They cannot refuse to do so and leave the matter to the Parliament. Nowadays, it is common to accept the reality that judges do create law and the declaratory theory is seemed to be so unrealistic insofar it has been suggesting that judges do not have choice to make when deciding cases.
Although the precedent system is rigid as bad judicial decision that could be perpetuated for a long time until overruled by a higher court or the lower court would have to be bound by the wronged precedent. At the same time, the system is not as inflexible as it seems to be in order to prevent the development of the law. Example include in the case of Shaw v DPP [1962] 12 where House of Lords created new law. The defendant, Shaw decided to fill what he perceived to be a gap in the market by starting a magazine providing the directory of the names and addresses of the prostitutes. Even though Scotland Yard had given advice that such activity would not be unlawful, he was subsequently charged with previously unknown offence of conspiracy to corrupt public moral. The issue is, how could have been convicted of an offence that did not appear to have existed at the time he committed the act constituting the offence? Shaw he argued that the charge was illegal and appealed. The appealed was dismissed and House of Lords in effect created a new crime. Viscount Simonds agreed with this view and said “…there is in that court a residual power where no stature has yet intervened to supersede the common law, to superintend those offences which are prejudicial to the public welfare. Such occasion will be rare, for Parliament has not been slow to legislate when attention has been sufficiently aroused. But gaps remain and will always remain since no one can foresee every way in which the wickedness of man may disrupt the order of society.”13 On the other hand, the declaratory theory repudiates the notion that judges ‘made things up’, so the only alternative is that universal truths were based. Oftentimes, the notion that law is based on fundamental, self-evident principles of ethics is called ‘natural law’ jurisprudence. However, the problem with natural law is that even if one is prepared to accept its basic tenet, there indeed are self-evident principles of ethics, it is by no means obvious that every situation that requires a judicial decision is one in which such fundamentals are at issue.14 Consider, for example, the famous case of Entores v Miles Far East Corp [1955] 15 This concerned the formation of contract by the use of telex machine in the older days of this technology before telephone or e-mail was used. Traditionally, the most formal business transactions would have been carried out by post and postal rule would apply. The ‘postal rule is that when the offeror sends a contract to the offeree, the contract is formed at the point of time when letter of acceptance by offeree is posted to offeror. It would be apply even if the letter of acceptance never even reaches offeror. When the use of telex was considered to be one of the communication methods, the court had to decide whether the same principle could be applied to telex as to post, which is whether a telexed acceptance sent was effective at the point of sending or on receipt. Denning L.J had given his leading judgment in Entores. In his judgment, instead of referring to any existing case law or legal principle, he says that it is pretty reasonable and obvious that a telex will be effective upon recipient. If the declaratory theory does work in reality, then Denning’s judgment cannot be creating law, he must be declaring what the law is. But since there was no existing law that he had referred to, it must, presumably, be derived from universal principles.16 Now, a proponent of natural law may believe it is self-evident that, for example, murder and rape are long. A real leap of faith has to be taken to believe that there are principles of natural law at stake in deciding when a telexed contact is formed. The reality, of course, is that no-one really wanted to see the ‘postal rule’ to be extended to a new technology when Entores was heard. Denning’s judgment is absolutely pragmatic one. It does not require any higher principles to be considered. In summary, the declaratory theory is predicated completely on acceptance of a natural law view of jurisprudence, not just for fundamental principles of ethics, but for everything.17
Avoiding precedent As discussed above, a judge will generally be bound by the judicial decisions of higher courts, it is how to precedent system works. But a previous case is only biding the current case is and only if the legal principle involved is the same and the facts are similar. Avoiding precedent is a precedent used by judges usually in order to avoid the consequence of an earlier wrongful decision which is, binding on them in strict practice.18 From time to time, the avoiding precedents associated with the issue that judges make law since the decision is not bind to the precedent. However, the rationale had been given in order to adapt the change of circumstances where the precedent is thought as not suitable with the present cases. Judges can avoid precedents by distinguishing, reversing and overruling the previous decision. Distinguishing is the circumstance that the judge use to distinguish a precedent on the point of law involved or case on its facts so as to avoid having to follow the previous decision. While the court can find sufficient differences between the material facts of a precious and a present case, then it may depart from the previous decision. Although a judges is bound by a precedent in a particular case, but there are good reasons why the judge may wish not to follow it. Moreover, distinguishing does allow judges to develop the law and create exceptions to a general rule established in a previous case. For example, the case of R v Smith [1959]19 where the defendants had stabbed the victim who received negligent medical treatment in which R v Jordan [1956]20 where the victim died of pneumonia which broke the chain of causation, was distinguished. Where there is a significant difference between the facts of two cases,, the previous precedent is distinguish in the present case Precedent may also be avoided by a superior court in the hierarchy overturning the decision of a court lower down in the hierarchy during the course of the same case which then substitutes its own decision. This will occur if, for example, the Court of Appeal has reached a particular decision in a particular case, but then the Supreme Court reaches the opposite conclusion in the ensuing appeal in that case.21 It can be carried out only by a court with enough authority such as Court of Appeal or House of Lords. With the case of R v Kingston [1994]22 where the House of Lords reversed the decision of Court of Appeal and held that involuntary intoxication will not be defense unless it prevents the defendant forming mens rea for the crime charged even though the defendant did not get intoxicated voluntarily. In overruling, a higher court can overrule a decision made in an earlier case by a lower court in a later, different case. For example the Court of Appeal can overrule an earlier High Court decision. Overruling can be use as a device if the previous court did not apply the law correctly or because the later court considers the original decision in the previous case is no longer desirable. This can be seen in R v R (marital Exemption) [1992]23 where House of Lords overruled a very long standing rule that husbands were not criminal liable for raping his wife.
It has to be noted that that a judge distinguishes on the facts, but reverses or overrules a decision or judgment on the law. Distinguishing does not affect the validity of the precedent of the previous case since it merely felt to be irrelevant law on the given facts. An overruled case is regarded as it has never been the law and it is will not be applied again in later cases. However, avoiding precedent means that the decision of the case will depart from the previous decision, it is thought that judges make law since the decision is not an outcome of judicial precedent or statutory interpretation.

Conclusion In short, judges do make law, they make law all the time and they always have. Although judicial law-making may be seen as an undemocratic way of law making process as the law was made without consultation with the representatives of the people. However, laws do changes as new situations about and based on realistic theory, it has to be accepted that judges do make new law and it is necessary where there are no existing rules to cover the situation as Professor Hart asserted. After all, a judge cannot pass judgment on a case simply relying on a decision made in the past which might have been out-of-date. However, case law is based on judicial whim where judges are not bound by the law but by what they think the law should be. Consequently, it is the application of precedent by judges, whether they are developing the common law or interpreting statuses is the main mechanism whereby judges make law. It involves a certain amount of discretion and the greater the discretion the ore arguable it is that judges are making law.24

BIBLIOGRAPHY
Books and other Published Sources
Huxley-Binns, Rebecca and Martin, Jacqueline. The English Legal System ( Hodder Education, London 2010 )
Blackstone, William. Commentaries on the Laws of England, vol 1 (Cavendish 1766)
Electronic Sources
Kumar Rajendran ‘Declaratory Theory of Law http://www.academia.edu/1745021/Declaratory_theory_of_Law accessed 20th November 2013
‘The Problem with Precedent’ http://kevinboone.net/the_problem_with_precedent.html accessed 20th November 2013
Declaratory theory http://sixthformlaw.info/01_modules/mod2/2_4_law_reform/22_judges_declaratory_theory.htm accessed 20th November 2013
Judicial precedent http://www.e-lawresources.co.uk/Judicial-precedent.php accessed 19th November 2013
Ratio decidendi http://www.lawmentor.co.uk/glossary/R/ratio-decidendi/ accessed 19th November 2013
‘Do judges make or find the law’ http://www.lawteacher.net/constitutional-law/essays/do-judges-make-or-find-the-law-constitutional-law-essay.php accessed 19th November 2013
Statutory interpretation http://www.lawteacher.net/constitutional-law/essays/statutory-interpretation.php accessed 19th November 2013
Judicial Precedent http://www.lawteacher.net/english-legal-system/lecture-notes/judicial-precedent-1.php accessed 20th November 2013
Previous decisions made by judges in similar cases http://www.lawteacher.net/judicial-law/essays/previous-decisions-made-by-judges-in-similar-cases-judicial-law-essay.php accessed 19th November 2013
Judicial precedent http://www.lawteacher.net/PDF/Judicial%20Precedent.pdf accessed 19th November 2013

TABLES OF CASES
Donaghue v Stevenson [1932] AC 562
Entorres v Miles Far East [1955] 2 QB 327 Court of Appeal http://www.lawteacher.net/PDF/Judicial%20Precedent.pdf accessed 19thNovemberr 2013
R v Jordan [1956] 40 Cr App E 152
R v Kingston [1994] 3 WLR 519
R v R (Marital Exemption) [1992] 1 AC 599
R v Smith [1959] 2 QB 35
Shaw v DPP [1962] AC 220

Bibliography: Blackstone, William. Commentaries on the Laws of England, vol 1 (Cavendish 1766) Electronic Sources