Do Judges Make Laws? Essay

1827 Words 8 Pages
Parliamentary sovereignty is the key stone in the British Constitution. If judges were to make law then they would be contradicting this doctrine. The legislative supremacy disqualifies the courts power to review the validity of legislation, refer to British Railway Board v Pickin . The objective of judges is to not make law but simply declare what the law had always been. Acts of Parliament are the highest form of authority and the courts hands are tied by it. But through the doctrine of precedent, the judicial function of declaring and applying the law has a ‘quasi-legislative effect’.
The rules of precedent themselves are judge made, except where a statute has intervened. Occasionally, judges have to decide on a case where there is
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This was seen in R v Miller. Before R v R , even though the wife had started divorce proceedings, the man could not be charged with marital rape and Parliament had not taken any initiative to reform this law.
The ability of judges to create law by their decisions compared to Parliament are much narrower since Parliament may readily change established rules of law and it does not have a retrospective effect except for the case of Burmah oil v Lord Advocate . Judicial law making on the other hand is subjected to individual liberties and the principles of public law.
It is now generally accepted that judges ‘do and must make law in the gaps of Parliament’ and welcome development of the common law. ‘The common law is a developing entity as the judges develop it, and so long as we follow the well tried method of moving forward in accordance with principle as fresh facts emerge and changes in society occur, we are surely doing what parliament intends to do’ .
Certain subject matters are best adjudicated by the courts creativity. The meaning of law in the statutes passed by Parliament should be clear and explicit but this is not always achieved. To avoid awkward conflicts on the meaning of an Act of Parliament using the literal rule, the judges will interpret the statute through the golden or the

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