The role of judges – making law, or not?

The role of the judge is to declare what the law is, not to make it.
Discuss this statement.
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There is a classic dictum that Parliament makes law and the judges interpret the law. This upholds the principle of parliamentary sovereignty which is held to be a core principle of the British constitution.

What is the law? The law in England and Wales is made up of statutes; regulations issued by government ministers and agents under statutory authority; by laws passed by local authorities; common law and European Union Regulations. Most of these are therefore statutes or derived from statutes. Common law is different. By Common law we do not mean that system of law that is share by most English-speaking countries. Common law here is meant laws that have grown up over time arising from court decisions and are not statutes.

The very fact that common law exists in England and Wales suggests that judges can make law. In the late 17th century juries established the right to acquit despite the Crown wanting them to convict. This in a sense made law. Murder is not defined by statute but is a common law offence. Likewise there are two types of contempt of court. One of these is contempt of court under the Contempt of Court Act. The other sort of contempt of court is framed by common law – that is to say what courts have ruled to count as contempt of court down the centuries.

Lord Denning, one of the most renowned 20th century judges, argued that judges could and did make law.

There is a danger of England and Wales moving to krytarchy that is to say that they rule. Some believe that judge made law would usurp the function of Parliament and would erode democracy.

Equity is a form of English law that emerged in the Middle Ages. Its role was to deal with situations that were either not covered by statute or where statute was unduly harsh or unreasonable. Equity surely implies that judges make law because they are filling in the gaps in statute. Various equitable maxims have been developed to allow judges to do justice. It is hard to argue that this is not making law.

Statutory interpretation is an area where judges powers are in dispute. There are three rules as to how judges can interpret statute. The literal rules says that the judges must apply the law literally – using the words in statute in their ordinary signification. The golden rule allows judges a little more leeway, allowing judges to refer to various other documents around the statute such as the report of Parliamentary commissions to aid understanding of the statute. The mischief rule is derived from the 16th century and enables the judge to figure out what mischief to the commonwealth the statute was intended to address and then to interpret the statute in such a way so as the tackle the problem that the statute was supposed to tackle.

What does statutory interpretation to do with the tendentious question as to whether or not judges can make law? The argument against the mischief rule and even the golden rule is that for judges to move beyond the literal rule of interpretation necessarily involves assuming the role that only Parliament can fulfill. For a judge to make law is therefore wrong.

There are various landmark decisions that suggest that judges can make law. Judges certainly change the law and presumably this therefore means that they make the law. Statutes are not always something totally new – they can be amending or repealing an existing law. For example, the principle of Wednesbury irrationality. In a case in 1948 involving Wednesbury borough council a judge ruled that if something was so absurd that, ‘no reasonable person who had applied his mind could have arrived at it’ then it was legally void. This in a sense created a new law.

Under English law a man could not be found guilty of the rape of his wife because of the legal principle of one flesh. A man was convicted of raping his spouse in 1992 and his appeal in 1995 was dismissed. This effectively changed the law. The European Court of Human Rights also dismissed his appeal.

Judges of the European Court of Justice definitely can make law and this impacts on the United Kingdom. Any conflict between the laws of England and EU law is resolved in favour of EU law. As Lord Denning said European law is an incoming tide. The Factortame case 1991 established this – that EU law trumps Acts of Parliament.

The European Court of Human Rights, which cannot overrule British statutes, often persuaded the UK Parliament to change the law. In 2000 the Grady case caused the UK to change the law and allow known homosexuals to served in the armed forces. In 1996 a British court had ruled that it was not unreasonable to ban gays from the military and that such a ban was lawful. The European Court of Human Rights effectively changed the law.

If Parliament was dead against judges making law then surely it would have passed a law to that effect. In other common law countries it is certain that judges can make law and do. In the US Brown v Board of Education; the Plessy Case; Roe v Wade (1973); the decision to find that the prohibition on interracial marriage was unconstitutional and so on have all been decisions made by the Supreme Court that become law and indeed part of the constitution and are therefore very difficult to reverse.

In conclusion, it appears that judges can make law and occasionally do make law. This is controversial and some have argued that judges should not or even cannot make law. This is controversial because many believe that for judges to make law is to arrogate to themselves a duty that only Parliament may legitimately perform.