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Judges do not make law

‘Judges do not make law – they only declare it’


Illustrate your answer with reference to at least TWO of the following:

(i)                 R v R;

(ii)               "The Case of the Speluncean Explorers" (Fuller, 1949);

(iii)             Ronald Dworkin’s concept of law;

(iv)             The Pinochet case;

(v)               Lord Steyn’s judgment in R v A (No 2);

(vi)              Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston

The function of a judge in any legal system remains a true phenomenon even today. Barristers, solicitors, law students and the general public often question the precise role of a judge – puzzled over whether judges are authoritarian law-makers, or if their profession makes them mere declarers or announcers of the law. Various valid opposing arguments exist in this on-going debate; authors, solicitors, professors, and prominent legal thinkers from earlier centuries have, on many occasions, stated their own views ensuring that either end of the argument is just as plausible as the other. In this essay I will consider a number of examples and cases which suggest that the statement is in fact valid. I will also review a number of specific cases where there is convincing evidence that the statement is incorrect and where new laws have indeed been made by judges. Therefore, my personal conclusion rests firmly in the notion that judges have the power, control and ability to not ‘only’ declare the law, but also in ‘hard cases’, also to make new law.

When considering either perception of a judge’s role within the legal system it remains of the utmost importance never to lose sight of the difficulties, complexities and intricacies that judges are faced with in their individual cases on a daily basis. Judges do not have an easy job, they do exactly what the rest of the community seeks to constantly avoid – make decisions. Gone are the days when a Manhattan court judge could decide the defendant’s jail sentence length simply on the toss of a coin[1]. Judges have an indescribable, almost mysterious power and control over individuals’ lives that cannot be paralleled with many others in contemporary society. They have to decide whether the defendant should go to prison, whether the plaintiff should receive compensation, whether a contract dispute is based upon valid documentation and precisely what it is that may constitute true and demonstrable slander. These are issues that judges constantly encounter – it is in their duty to stipulate the best, most appropriate ruling to the claimant:

"They must not spin a coin or consult an astrologer, but must give reasons for their decisions."[2]

Thus, regardless of which argument any particular individual believes, it is generally perceived that a judge’s main objective should be to apply legal reasoning, integrity and discretion when delivering any particular verdict. Whether this requires a derivation of the verdict from a statute or precedent, or whether it concentrates on a judge amending a law or even ‘making’ one, to me, a judge’s primary aim remains to see that justice prevails and that fair treatment is given to the claimant.

Theories on the role of a judge have dated back to that of an anthropological approach which looks to when various tribes used differing methods to resolve disputes. The Azande tribe – a society from Africa that was studied in the 1930s believed in witchcraft and saw it as a mechanism by which laws were broken. Their way of resolving a dispute revolved around the concept of ‘chicken divination’ – whereby poison was fed to a chicken and if the chicken died it would prove that the person accused was guilty.[3] The process was clearly one that was a ritual to legitimize the decision reached – it was undoubtedly a fix. So, the question nowadays may arise as to whether the decisions judges make are construed according to an innate bias; a personal manipulation of the rules similar to that of how the Azande chicken diviners created rules. If this is the case then it would support the argument that judges are mere declarers of the law – they are given set rules that they must abide by; however, they can choose to interpret the law in any way they wish.

Ronald Dworkin is a famous common law theorist who believes in a similar theory of the law as being "the nature of legal argument which lies in the best moral interpretation of existing social practices."[4] He believes that judicial legislation does, in a contradictory way, impose both freedom and constraints on the judge. Dworkin believes that even if there are no evident legal constraints, there still may be moral, social or traditional ones that are holding a judge back from using his own discretion entirely.

In Dworkin’s biography, ‘Law’s Empire’[5], he focuses effectively on the idea that judges can never make new law when he analyses the distinction and the differences in power between parliament and judges. Dworkin contrasts the English legal system with that of the American when he points out that (in the English Common Law) if parliament doesn’t agree with or approve of the solutions offered by a judge, then they have the power to overturn the judge’s answers. This illustrates a clear lack of power on the part of the judge to implement new legal reasoning:

"Judges ought to remember that their office is jus dicere and not jus dare; to interpret law and not to make new law, or give law."[6]

Dworkin therefore presents a broad attack on the idea of how discretion works. He believes that judges never simply apply rules, but that they are there for a purpose. Every rule is underpinned by a principle or policy, for example, contract law which places emphasis on a binding contract being made by a valid offer and acceptance – this in itself establishing the policy of enabling the free-market exchange of goods. Law is not equal to rules alone. Law is equal to rules, policies, principles and a communal reality. Thus, because Dworkin perceives law as something highly expansive, he offers more props to the judges in order to assist them in developing the laws as opposed to making new ones.

Dworkin regards judges as the ‘priests of law’ – they are never capable of creating new law but they can declare ‘fresh applications of ancient rules’.[7] Judges should apply the law that other institutions have made; they should not make law. No matter how ideal this would be, it remains unpracticed due to statutes and the common law ensuring that judges are completely bound. As Lord Scarman states:

"The judge, however wise, creative, and imaginative he may be, is cabin’d, cribb’d, confin’d, bound in not, as was MacBeth, to his ‘saucy doubts and fears’ but by the evidence and arguments of the litigants."[8]

This concise metaphor repeats the idea that judges have been given guidelines which relate not only to the rules prevalent in law, but also to the principles and policies that Dworkin believes co-exist and underpin each rule in any legal world. They are held back by various mechanisms from straying too far from the written words of the common law. Therefore, in contrast to Hart’s positivist approach which identifies with the much accepted reality that not all rules can cover every situation – and therefore that power can be granted to judges to use their own discretion in passing new laws, or in amending laws in controversial cases – Dworkin maintains a sound belief that the word ‘discretion’ must be analysed carefully before any power is placed on a judge’s shoulders.[9] For example, in a ‘hard case’ where judicial discretion may be necessary, it may only be incorporated if it means that judges are to be bound in considering principles and policies - and not only rules - in reaching their amended decision.

Statutes help in reiterating this belief of Dworkin’s that judges are mere declarers of the law in that a statute – final and definitive in its very nature - is still marred by an individual, subjective interpretation of any of the sentences, phrases or clauses. [10]

"The law does not have the quality of a railway timetable with the predetermined answers to all the questions that human life, man’s wickedness and the intricacies of commerce can throw up. The law, as laid down in a code, or in a statute or in a thousand eloquently reasoned opinions, is no more capable of providing all the answers than a piano is capable of providing music. The piano needs a pianist and any two pianists, even with the same score, may produce very different music."[11]

Confusion is always a ubiquitous response when one is considering the precise content of the written words in a statute. A simple example which illustrates this idea is that of a fictitious law which may prohibit ‘vehicles’ within a park. But does this law include the use of perambulators and skateboards as well as motorized vehicles? In such a case, the judge would be forced to look beyond the mere rules in the statute prohibiting ‘vehicles’, and would instead be required to find an intention – or an underlying principle – which would help give reason to the law. Similarly, in a murder case, questions of defining what exactly murder is may arise when one considers more abstract, debatable forms of murder such as abortion, euthanasia and killing in self-defence. This reiterates Dworkin’s approach to the law as offering a highly subjective interpretation of a combination of rules and principles, rather than just rules.

Although hundreds of statutes have been constructed and are amended over time to attempt to satisfy and fulfill various differing aspects of the law, what has become known as the ‘three canons of statutory interpretation’ has developed. It now exists in such a way so as to challenge the way that a judge uses what little individual discretion he has to interpret the written words of a statute. The three canons – the literal rule, the golden rule and the mischief rule – are used in differing circumstances so that in any specific case the judge can adopt the most appropriate, common sense approach. However, it still remains that judges are bound by the words of statutes, precedents and the common law so much so that there is often little leeway or additional space for independent judicial discretion. Therefore, the incorporation of statutes into the set question clearly depicts how it supports the fact that judges can only ever declare law.

A recent case which also supports the statement that, ‘ judges do not make law, they only declare it" is the House of Lords case , R v A (2001), which concerns the rights – issued in a statute – of the complainant in a rape case. In this case the defendant appealed to the House of Lords declaring his own statement of defence after the complainant took her case to court. He argued that the act of sexual intercourse between himself and the complainant wasn’t forced, and rather that it was entirely under her consent. Furthermore, the defendant stated that because himself and the complainant had had past sexual relationships with one another, this would exclude him from being convicted of rape.

In this particular case when the defendant appealed, Lord Steyn relied on the provisions of a statute – section 41 of the Youth Justice and Criminal Evidence Act 1999[12] - to protect the rights of the complainant and to prove that the rigidity of the content in the statute was too great for even himself to attempt to change. Furthermore, the Human Rights Act 1998[13] was incorporated into the trial to emphasise this idea of firmness and a lack of flexibility in the law when it was found that the appellant’s wishes of questioning the complainant’s past sexual relationships during cross-examination were rejected because Article 6 – the right to a fair trial – would too have been breached. Therefore, in essence, the case concerns the permissibility of questioning a complainant about an alleged recent sexual relationship between herself and the complainant, and it shows how regardless of what a particular judge’s individual opinions on the matter may be, the written words of a statute are not only acknowledged, but are furthermore adhered to and respected by the courts.

Section 41 of the 1999 Act, for example, clearly states (in sub-section 1a/b) that:

"no evidence may be adduced" and " no questions may be asked in cross-examination by or on behalf of any accused at the trial, about any sexual behaviour of the complainant". This clearly recognizes the fact that, under no circumstances, and under no personal discretionary bias of the judge, may a complainant be questioned about issues which are condemned or strongly turned against in the statute. Therefore, even though the defendant believed that his appeal to the higher courts would assist him in extrapolating information regarding the complainant’s past sexual behaviour, his appeal was partially abandoned because Lord Steyn accepted that his personal opinion on the matter – whether he agreed with the appellant’s argument or if he disagreed with it entirely – was irrelevant. The words of the statute bind him, and all other judges, which makes it astonishingly difficult for them to make new law or to contribute with their own subjective viewpoint. This idea is reiterated in Professor Diane Birch’s article, "A Better Deal For Vulnerable Witnesses?"[14] where she concisely states that, "....along with the complainant’s other sexual doings, the remainder of the history of any sexual relationship the complainant has had with the accused will, it seems, have to be concealed from the jury or magistrates."

The belief that judges can only ever ‘declare’ the law is also apparent in Section 42 of the Youth Justice and Criminal Evidence Act 1999 where the entire section is dedicated to explaining a precise method of interpreting and applying the rules and guidelines established in Section 41. Sub-section 1, for example, gives clear definitions of what exactly is meant by the terms "issue of consent" and "sexual behaviour" – undoubtedly analysed to such an extent to ensure that judges using the particular statute will not pick up on varying connotations that could, as a result, greatly affect the outcome of the trial.

Opposing arguments to the essay statement, however, concentrate on the belief that in ‘hard cases’ judges can and do create new law. In the cases that follow it seems to me that there are clear indications that judges do indeed create new law where, for example, existing laws have become outdated or inappropriate. This thesis essentially stems from the views of the famous common law theorist, Hart, a legal positivist who sees the fusion of primary and secondary rules as being the determinant of what later becomes known as a legal system.

"Law may be characterized as the union of primary and secondary rules."[15]

Primary rules are those which provide rights or introduce obligations to society; they are rules which must be followed. Secondary rules, however, are those which seek to recognize the primary rules, to change or improve the rules, or to adjudicate (decide when the rules have been breached) on the rules. Thus, it is the judge’s role to use his own discretion regarding when he thinks rules need to be applied, changed, improved or abolished. For this reason, although Hart sees the function of law as being one of a system of rules, he maintains a firm belief that where there are ‘gaps’ in the system judges should use their own discretion when applying the law. Hart believes that because statutes and common law rules are often too vague and unclear it is often inevitable in ‘hard cases’ for a judge to create new law. In such a case a judge must use his own opinion or his own ‘extra-legal discretion’ in deciding how it would be best to deliver justice to the plaintiff.

A highly plausible argument in its content and nature, this amendment or even total construction of a new law can be seen in the RvR (1990) case which sees an older, more traditional view become abolished and replaced with a newer, more appropriate one for today’s modern world. The case revolves around the fundamental question of whether a husband can ever be criminally liable for raping his wife. In this highly debatable and controversial case the defendant/appellant was found guilty in the Crown Court on two counts – 1) attempted rape, and 2) assault occasioning actual bodily harm. Having been convicted, the appellant then took his case to the Court of Appeal to re-appeal, and finally – once he had exhausted all other possibilities – he bought his case to the House of Lords. There were five judgments given in the House of Lords case, all unanimously dismissing the appellant’s appeal. The old-fashioned beliefs and laws were dramatically changed by the judges who recognized a basic requirement to alter traditional views that had been established by prominent judges in the 18th Century.

Chief Justice Hale – a well-known and controversial judge from the 18th Century was one such person who held strongly traditional views on the issue of rape within marriage:

" The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in the kind unto her husband, which she cannot retract."[16]

The judicial members of the R v R case utterly condemned this statement and the judges focused on using precedents and their own discretionary and interpretative skills when reviewing statutes to form the basis of their argument. Whereas the Crown Court tended to focus too much on smaller, less important elements of the case, such as the fact that the complainant was in her mother’s house and that a decree absolute had not been made at the time of the rape, the Court of Appeal and the House of Lords instead concentrated more on specific past cases which helped illustrate that laws can understandably be changed or amended as the world does. The common law is meant to be a collective common sense view of the judges:

" Assuming that there is a decision which would be upheld by the court today...we find it impossible to stretch that doctrine."[17]

Another judge, Justice Fawcus, makes similar comments when he argues that he finds it difficult to believe that there ever existed a common law saying that a husband was entitled to beat his wife into submission to sexual intercourse. He says that, had this ever been the case, it would be a sad commentary on law, and an even sadder one on judges ‘in whose breasts the law is said to reside.’[18]

The Court of Appeal considered more detailed aspects of the defendant’s appeal when Lord Lance CJ ruled that the old laws regarding rape within a marriage were ‘anachronistic and offensive’ – the laws didn’t sufficiently protect the women. He made an immediate decision that the laws must be changed for today’s society. The new principle that he laid down ensured that, " a rapist remains a rapist subject to the Criminal Law irrespective of his relationship with the victim."

Lord Lance furthermore incorporated the Sexual Offences Act (1976)[19] when creating this new law by scrutinizing the words of the Act which states that "a man commits rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse doesn’t consent to it." This statement rightly became one of individual statutory interpretation whereby the literal understanding of the word ‘unlawful’ was disregarded, and a newer, more abstract understanding was created. This new understanding saw the term ‘unlawful’ as being appropriate not only for cases ‘ outside the bounds of matrimony’, but also for rape cases within a marriage.

R V R is a case which essentially highlights the importance of a judge – he/she is the only person with the power to oversee issues regarding whether the law is ‘fair’ and whether it provides justice for the complainant. Judges fulfill a judicial oath whereby they swear to, ‘ do right to all manner of people after the laws and usages of this realm’[20]; bearing this in mind, it is clear that judges DO occasionally have to amend or change laws. Therefore, as a judge moves up the legal hierarchy – for example, to ‘hard cases’ – a judge will have to look to alternative solutions in amending the dispute. In such a case the judge will inevitably make law.

This idea is similarly seen when the judicial role is contrasted with the role of Parliament. Jeremy Bentham ridicules the idea that all laws in statutes are made by Parliament; he believes that judges can and do make law for men. In the same way, judges have deceived one another for centuries in believing that they merely applied the law created by Parliament – they believed that their job was simply to ‘interpret law, and not to make law, or give law.’[21] How wrong this belief has proved to be. In highly debatable and controversial ‘hard cases’ this idea could not be further from the truth. Judges have – and quite rightly – taken the initiative to stipulate new laws and to create new legal reasoning to old and outdated rules.

One final case which again assists in illustrating the importance and power of a judge to interpret facts and create new law is from the fictitious case of the Speluncean Explorers. This case was written by a Harvard law professor with the intentions of showing the various arguments ‘current in jurisprudence in a practical context.’[22] The case revolves around four men who are trapped underground for a lengthy period of time – in order to survive they must eat one of their number. The men are put on trial for murder and are found guilty. They are sentenced to be hanged.

Various judges were asked to make comments on the actions of the men – their impulsive and instinctive moves which culminated in the death of another. When questioned regarding whether they thought the men should receive the death sentence, the judges all held differing opinions. Whereas Truepenny C.J used the acontextual rule, believing that the statute in question could only be interpreted literally and couldn’t be extended in the slightest, Foster C.J adopted a more purposive approach which focused on the idea that the ‘letter of the statute could not be underpinned by its spirit’. The purposive approach, reminiscent to the Golden Rule, proposes that, where the wording of the law leads to absurdities, the judge must take the step to ensure that the anomaly or ambiguity is cleared. The principle concentrates on the idea of the judge entering the mindset of the legislature – "judges should act as deputy to the appropriate legislature, enacting the law that they suppose the legislature would enact if seized of the problem."[23] This dynamic form of law-making may inevitably result in the judge overruling past judgments and creating newer, more appropriate ones. This is reminiscent of Aristotle’s idea of an underlying universal order – so judges must sometimes make new law, either covertly or explicitly.

In conclusion, what we are still left with is an abyss filled with differing arguments of what precisely the role of a judge is. So, is the judge merely the declarer of law? I would argue not. A judge’s function, on the surface and superficially, may appear to simply be that of stating the law based on past judgments made in precedents, statutes and the common law in general. However, I would argue that there is a lot more to a judge’s duty than simply that. In the example of ‘hard cases’, judges have the authority and control to create new law where it may be appropriate, and so, for this reason, they take on the role of legislature. As a judge moves up the legal hierarchy, his knowledge, professionalism and ability to use his own discretion to scrutinize and assess statutes and precedents increases – making him more aware of deficiencies in existing laws. In such a case, his duty would require him to be not only a mere declarer of the law, but also a creator of a newer, more appropriate and fairer law which will ensure that justice ultimately prevails.

[1] 69ABAJ 730 (1983)

[2] R v Deputy Industrial Injuries Commissioner ex parte Moore (1965) 1 QB 456,488 (Diplock LJ)

[3] ‘Reality, Anthropology and dispute resolution’ in W Mansell et al, ‘A Critical Introduction To Law’(2nd ed); (Cavendish Publishing Limited: 1999), p29-43

[4] S Guest, ‘Ronald Dworkin’ (2nd ed); (Edinburgh University Press:1997) p17

[5] R. Dworkin; "Law’s Empire"; (Harvard University Press;1988)

[6] Francis Bacon in Rageer Dhavan et al, "Judges and The Judicial Power" (Sweet &Maxwell;1985)

[7] Ibid. n7

[8] Lim v Camden Health Authority (1979) 2 ALL ER 910 at p914 per Lord Scarman

[9] "Is Law A System Of Rules?" in R.M Dworkin, "The Philosophy Of Law" (O.U.P., 1986)

[10] Louis L. Jaffe, "English and American Judges As Lawmakers", (Caredon Press, Oxford; 1969)

[11] Lord McCuskey in Simon Lee’s, "Judging Judges", (Faber & Faber 1988)

[12] Youth Justice and Criminal Evidence Act, 1999

[13] Human Rights Act, 1998

[14] Diane Birch, "A Better Deal For Vulnerable Witnesses?", (2000) Crim LR 223, 248

[15] Ibid n13

[16] Hale CJ, "History of The Pleas of the Crown" (1736; p691)

[17] R v Reid (1972) 2 All ER 1350 at 1352

[18] R v Sharples (1990) Criminal LR 189

[19] Sexual Offences Act, 1976

[20] S10(4) Supreme Court Act 1981 read with S4 Promissory Oaths Act (1968)

[21] Francis Bacon, "Of Judicature In Essays", (1623); p162

[22] W.J Stewart & Robert Burgess; "Collins Dictionary of Law";(HarperCollins Publishers; 1996)

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