1. Judicial Creativity
“A live system of law will always have regard to changing circumstances”
Lord Keith R v R (1991)
Do Judges Make Law?
The Declaratory Theory
This maintains that judges, through the rules of precedent, merely discover and declare the existing law and
never make ‘new’ law. The 18th century legal writer, William Blackstone, stated that a judge makes a decision,
Even modern writers such as Ronald Dworkin support this view to a certain extent..
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The Modern View
Both Blackstone and Dworkin have been criticised for being unrealistic. This criticism has come from both judges
and academics.
The legal writer David Kairys opposes Dworkin’s view that judges have no real freedom within
the doctrine of judicial precedent and dismisses his idea of a seamless web of legal principles.
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2. Professor Hart accepted that judges make new law and that this is necessary where there are no existing rules to
cover the situation.
Lord Radcliffe, a prominent Law Lord said in 1968,
Lord Reid, for many years the senior Law Lord in the late 20 th century, in a speech entitled ‘The Judge as
Lawmaker’ said, ‘We do not believe in fairy tales any more, so we must accept the fact that for better or worse
judges do make law.’
Lord Edmund-Davies, another leading Law Lord in the 1970’s said,
Example:
Hart could see Donoghue v Stevenson as making a new law (that a manufacturer is liable to the consumer for
defective products) which filled a gap in the existing law. Dworkin could see it as finding an existing principle
(that people had a duty not to harm others) and extending it to a new situation.
How Do Judges Make Law?
Both case law and the rules of precedent, and statute and the rules on statutory interpretation involve a certain
amount of discretion. The greater the discretion the more arguable it is that judges are making law.
Creativity and Judicial Precedent
The application of precedent by judges, whether they are developing the common law (for example in areas such
as negligence or murder) or interpreting statutes is the main mechanism whereby judges make law.
Original Precdent:
Occasionally, judges are called upon to give a ruling or make a decision when faced with a situation for which
there seems to be no precedent. In these circumstances, judges can be said to be formulating original precedent
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3. (although supporters of the declaratory theory would say that this does not happen!). Examples of original
precedent can be seen in such cases as:
Hunter v Canary Wharf (1995)
Airedale NHS Trust v Bland
In ‘hard cases’ such as these it could be argued that judges should not become involved and should, instead,
leave the matter to be dealt with by Parliament and, indeed, this sometimes happens. In the Bland case, for
example, a minority of the Law Lords who presided expressed this view and most judges would be reluctant to
come to a decision on an issue which was due for parliamentary consideration. The judges in the Diane Pretty
case made it clear that the issue of Euthanasia was one for Parliament.
Distinguishing:
Judges can also exercise their creativity by distinguishing, in fact Professor Goodhard stated “It is by his choice of
material facts that the judge creates law”. This can be seen in the cases of Balfour v Balfour (1919) and Merritt
v Merritt (1971).
Balfour v Balfour
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4. Merritt v Merritt
1966 Practice Statement
The Practice Statement allows the House of Lords to overrule its own earlier decisions “if it appears right to do
so”. This gives a wide discretion and allows an old law to be changed and a new one created. It means that the
Law Lords can choose when they should use the Practice Statement and when to leave the law to stand as it is.
It is used rarely – it was first used in a civil case when Conway v Rimmer (1968) overruled Duncan v Cammell
Laird (1942). It was not used in a criminal case until 1986 when the case of R v Shivpuri overruled Anderton v
Ryan.
It was used in 2000 in the case of Hall v Simons when the House of Lords refused to follow the earlier case of
Rondel v Worsley (1969) which had given barristers immunity from prosecution.
A recent example of its use in criminal law was when R v G and another overruled R v Caldwell in October 2003.
As the law stood to be found guilty of criminal damage the prosecution had to prove that a reasonable
person would have foreseen the risk of damage. This was particularly harsh when the defendant was
incapable of seeing the risk due to their age or lack of intelligence. In R v G the House of Lords admitted
that this decision was wrong and changed the test for liability to ‘did this defendant see the risk?’. In this case
the defendants were 11 and 12 and had not seen the risk of burning down a supermarket when they had started
a fire in the car park.
The Court of Appeal and Young’s Case
The Court of Appeal is normally bound by its own previous decisions – the rule in Young v Bristol
Aeroplane Co (1944). There are three exceptions to this rule:
1. Where there are conflicting decisions in past Court of Appeal cases the court can choose
which one to follow and which to reject
2. Where there is a decision of the House of Lords which effectively overrules a Court of Appeal
decision; the court must follow the House of Lords
3. Where the decision was made per incuriam i.e. carelessly or by mistake because a relevant Act
of Parliament or other regulation was not considered by the Court.
It is only the last exception that gives a very small degree of flexibility to correct errors.
Lord Denning wanted the use of the Practice Statement to extend to the Court of Appeal but he was
criticised by other judges.
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5. Creativity and Statutory Interpretation
In statutory interpretation the judges are being asked to decide the precise meaning of words in an Act of
Parliament. There are conflicting views on the role of judges in this area. Some judges follow the Literal Rule
which states that the words should be given their plain, ordinary, grammatical meaning. This can mean using the
literal meaning of the words even if the result is not very sensible. Cases where this approach is used can support
an argument that judges are not creative.
The Golden Rule only applies if the literal rule leads to absurdity, so allows little creativity.
The Mischief Rule and its modern interpretation in the Purposive Approach is a little more creative. They look
to the intention of Parliament and why it passed the Act in the first place. This appears to uphold parliamentary
sovereignty and the ‘finding’ law view it could also be argued that judges are putting their own values on what
they think Parliament intended. This is especially true when they are interpreting an old statute. The purposive
approach can mitigate the harshness of the literal rule.
In Pepper v Hart Lord Griffiths said
Should Judges Make Law?
Adapting to Social Change
Sometimes the judges recognise that society has changed and are willing to alter the law –
Fitzpatrick v Sterling Homes (2000)
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6. Consensus law-making
Lord Devlin said new ideas within society go through a number of stages. To start with society will be divided but
eventually most ideas become accepted by the majority of society. At this stage there is a consensus. This has
happened in areas such as homosexuality and sex before marriage.
Law making while the idea is still controversial is called dynamic law making and Lord Devlin said this should be
avoided. Sometimes however judges do have to embark on dynamic law making.
Gillick v West Norfolk AHA (1985)
The Balance Between the Roles of Parliament and the Courts
Parliament is elected. MPs are our representatives and so can be said to make laws on our behalf, to protect
society as a whole. Most people accept Parliament’s right to make law, even if they don’t agree with a particular
law. Judges are not elected and people may find it harder to accept their role in law-making.
It has been suggested that judges are becoming too keen on changing the law and should wait for
Parliament to do it. For example in Kleinwort Benson Ltd v Lincoln City Council (1998) the House of
Lords decided to change a long standing rule that if someone make a payment as a result of a mistake
about the law they did not get their money back. The rule had existed for 200 years and the Lord Chancellor had
asked the Law Commission to decide if it should be changed. The House of Lords didn’t wait for Parliament to act
on the Law Commissions recommendations but changed the law, this is arguably judges taking powers to which it
is not entitled.
Lord Scarman in McLoughlin v O’Brien said “the objective of judges is the formulation of principles,
policy is the prerogative of Parliament”. Policy is concerned with what is right for society as a whole, a
collective goal. Many people think policy should only be matter for government and Parliament.
However judges are clearly involved in policy decisions and take the wider community interests into account e.g.
in Hill v CC of West Yorkshire and the ‘fair, just and reasonable’ issue in relation to duty of care.
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