Do Judges Make Law: Judicial Legislation?

Judicial legislation:
Practically, every enacted law on a probing analysis reveals certain gaps which the judiciary is expected to fill up by way of interpretation. This is popularly known as “Judicial Legislation”. Such filling up is however expected to be done in consonance and conformity with the constitutional dictates and confined to the extent permitted by the Constitution which distinguishes it from being branded as an instance of “Judicial overreach”

Do Judges make law?
The traditional view on this matter is that, for the legislature, the question is always general interest against a particular interest. For the Judge, the only question is the true intention of the legislature. It is the province of the legislature to determine what
Else it will be like the authority claimed by the Church of Rome, which under pretext of exposition of scripture did not stick to add and alter, and to pronounce that which they do not find; and by shew of antiquity to introduce novelty. Judges must be beware of hard constructions and strained; for there is no worse torture than the torture of laws. Judicis officium est, ut res, ita tempora reeum . Judges ought above all to remember the conclusion of the roman twelve tables, Salus populi est suprema lex ; and to know that laws, except where they be in order to that end, are but things captious, and oracles not well inspired. Therefore it is a happy thing in a state when Kings and States do often consult with Judges; and again when judges do often consult with the King and State, one, when there is matter of law intervenient in business of state, the other when there is some consideration of state intervenient in matter of law. Let judges also remember, that Solomon’s throne was supported by lions on both sides, let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of
According to this theory, Judges are no more than the discoverers of law. They discover the law on particular point and declare it. This view has been supported by many writers, jurists and judges.
The view of chief justice Coke is that judicial decisions are not a source of law but the best proof of what the law is.
Blackstone wrote: “They (judges) are the depositories of the laws; the living oracles who must decide in all cases of doubt and who are bound by an oath to decide according to the law of the land. These Judicial decisions are the principal and most authoritative evidence that can be given of the existence of such a custom as shall form a part of the common law. A Judge is sworn to determine, not according to his private judgment but according to the known laws and customs of the land; not delegated to pronounce a new law but to maintain and explain the old