THE FRSA

Judicial Law Making

• According to Helen Rutherford: “there was time when judges adhered

to declaratory theory of common law. This stated that there was no such
thing as judge made law. When the judge made decisions, they were
merely declaring that what the law is”. In recent years there has been a
great deal of debate over the efficiency of judicial law making in the
British constitutional structure where the democracy is overwhelmingly
underlined by the principle of parliamentary supremacy. Recently the
decision of prorogation of parliament by Boris Johnson and the decision of
courts regarding unlawful and a lie to the Queen has once again brought
the doctrine of rule of law under the criticism from legislative and
executive.
Should the JLM get abolished?
 JLM IS A REALITY
• Hellen Rutherford where she regards the
idea of judges merely finding the law as if it’s in
ether is absurd and inapplicable in terms of
practicality of the English legal system.
Secondly, Natalie woretely says that the nature
of the judicial law making has reformed
significantly from in the 20th century. Thirdly, it
is now well established that judges only make
law in terms of the case brought before the
court. The drawback of this is that there will
always be an issue which will remain
unresolved for years. In addition to this, the
existence of the doctrine of judicial precedent
is the evidence that judges do make law. But
that is constrained by the doctrine of binding
precedent and overwhelmed by the doctrine of
persuasive precedent.
 PMS & JLM

• Furthermore, the clear distinction can be drawn in between

the parliamentary law and the common law. As such the latter
holds its allegiance and recognition to and from the former.
The supremacy of Westminster palace curtails the
discretionary powers of the unelected judges. Which leads no
doubt to the friction between two limbs of the constitution.
Similarly, Natalie woretely says that judges are the law makers
to the extent that their law is built on the floor of statutory
interpretation and applied by the ceiling of the same.
Moreover in the case of Ghaidan V Godin Mendoza it was
stated that judicial activism will never lead to the rule of law
superseding parliamentary sovereignty, the doctrine will have
precedence over parliament or not is the question that will be
resolved by parliament itself. Henceforth in light of these
reasoning it can be established that judges do make law and
they do so under the aforementioned limits.
 • Now we shall the address the second question. Declaratory theory establishes that judicial law
making is inherently retrospective. Whereas the practice of the common law suggests that the scope
of the judge made law is prospective and it tries its best to avoid retrospectivity by applying the
common law principle as binding or persuasive precedent only to the cases coming after the
establishment of the principle. Moreover the advocates of the declaratory theory undermine the
Declatory judicial law making by terming the doctrine as mere interpretation of the act by saying that the law
has always existed in form of statutes and judges only apply it. Whereas it crucial to mention here
theory & that declaratory theory in the modern period can be regarded as nothing more than the legal fiction.
As such the areas of the constitution such as royal prerogative are fundamentally uncodified and it is
Lord Lyod the judicial law making that has described and prescribed the practice and operation of the Royal
prerogatives. Furthermore, lord loyd in Kleinworth benson V Lincoln city council says that now
nobody says that common law is static. It is able of adapting itself to the new ethos of society. This
leads us to the question that is it capable of being changed or is developing? Lord loyd says that
common law is capable of change in accordance of legislations and judicial decisions.
Criticism on DLT & Lord lyod

• Although the reasoning of the lord loyd is quite up to date but it completely disregarding the
somewhat stagnant nature of judge made law is not practically acceptable. As such In order to
maintain uniformity and certainty the judicial law making follows the binding precedent which
makes the court reactive and not proactive. Rightly does Andrew Williams from the handbook on
European Union law says, “that constitutional justice would be hard to achieve when the court is
only responding to cases coming to it”.so without any doubt it can be established that binding
precedent compromises evolving nature of common law but upholds the predictability. The
operation of binding precedent can be observed in numerous cases such as Jones V secretary of
state in which HOL refused to depart from theor decision in RE Dowling in order to maintain
certainty.
 JLM & PRACTICE STATEMENT

• However judicial law making under the doctrine of practice statement has introduced the required
flexibility in common law. As the Lord Gardiner said that when there is need to depart from the binding
precedent the House of Lords has the authority do so. Whereas in doing so the house will also keep in
mind the danger of retrospectivity. Here the question arises that what is the right time to depart from
the binding precedent? Hellen Rutherford says that if the precedent if applied in the current case leads
to injustice and absurdity than the House of Lords will depart from it. Secondly she says that if the
development of common law is unduly restricted judges will be more inclined to use the doctrine of
practice statement in order to maintain the evolving nature of judicial law making. Moreover the Steven
Wilson that it is now well established that House of Lords will use caution in exercising the doctrine of
practice statement in terms of contracts, property settlement. Practice statement can be seen in
operation in many cases such as R V Jogee where the Supreme Court was asked to depart from the
ruling of the Privy Council in case of Sui V the Queen.
JLM & QUEEN’S PRIVY COUNCIL

• The loopholes in the doctrine of judicial law making can be stated as such the judge made law
inherently has paradox at its heart. As such the Privy Council judgement is considered as persuasive
precedent which is open to criticism. It can be critically established that uniformity of the law in the
commonwealth jurisdictions that support the Privy Council judgements becomes questionable when
the English courts themselves are free to barge out from the principles of the Privy Council judgement,
this compromises uniformity. Moreover judicial law making sometimes encroaches on the legislative
function of the parliament. Similarly the judge made law is despite of the existence of practice
statement is stagnant to a measurable degree which compromises flexibility and evolution.
Furthermore the device of distinguishing has provided the judges with option of not apply the
precedent by merely distinguish the facts of the case from the previously established case law, this
compromises certainity, clarity and predictability.
 SUMMARISING JLM
• In order to conclude it can be established that judges do make law but under the limitations and
judicial law making still has the room for great improvement in practice. This can be summed up in
the words of C.K Allen as he says “the creative power of the courts is limited by the exiting legal
material at their command, they find material and then they shape it. The legislature may
manufacture entirely new material”. In totality of the arguments, we can metaphorically and
categorically regard judge made law as tapestry. As Hellen Rutherford says: all judges may do is
insert stitches here and there, when enabled by the litigation to do so. the insertions are thus
limited by the surrounding fabric”.
MIRROR PRINCIPLE
THE OWEN FISS
ARTICLE