Judicial Law-Making

The independence of the judiciary was ensured by the act of settlement 1700, which transferred the power to sack judges from the crown to the parliament. Consequently, judges should theoretically make their decisions based purely on the logical deductions of precedent, uninfluenced by political or career considerations. The eighteenth century legal commentator, William Blackstone, introduced the declaratory theory of law, stating that judges do not make law, but merely, by the rules of precedence, discover and declare the law that has always been: 'the judge being sworn to determine, not according to his private sentiments...not according to his own private judgement, but according to the known laws and customs of the land: not delegated to pronounce a new law, but to maintain an expound the old one'. Blackstone does not accept that precedent does not even offer a choice between two or more interpretations of the law: where a bad decision is made, he states, the new one that reverses or overrules it is not a new law, nor a statement that the old decision was bad law, but a declaration that the previous decision was “not law”, in other words that it was the wrong answer. His view presupposes that there is always one right answer, to be deduced from the objective study of precedence.

Today, however, this position is considered somewhat unrealistic. If the operation of precedent is the precise science Blackstone suggested, a large majority of cases in the higher courts would never come to court at all. The lawyer's concern could simply look up the relevant case law and predict what the decision would be, then advise whichever of the clients would be bound to lose not to bother bringing or fighting the case. In a civil case, or any appeal case, no good lawyer would advise a client to bring or defend the case that they had no chance of winning. Therefore, where such a case is contested, it can be assumed that, unless one of the lawyers has made a mistake, it could go