How And Why Do Judges Make The Law?


A law is an obligatory rule of conduct imposed and enforced by the sovereign. Therefore the law is that the body of principles recognized and enforced by the state within the application of justice. The law is specially made by a parliament, a legislative body given power by the constitution to draft law. However in the last few decades there has been a notion that judges make law. A judge may be a public official appointed or elected to listen to and choose legal matters in court, Judges exercise judicial power. This involves making binding decisions affecting the rights and duties of citizens and institutions. In completing the task, a judge can use any of the following three sources of Ugandan law, Acts of Parliament or legislation, the common law, or previous decisions by the courts and a constitution.

Although judges have traditionally seen themselves as declaring or finding rather than creating law, and frequently state that making law is the prerogative of Parliament, there are several areas in which they clearly do make law.

Also Read – How Judges Are Addressed in Courts of Different Countries?

What opportunities do judges have to be creative?

This is believed that in “hard cases” judges can and do create new law. While talking about the judge’s role, during the creation of law which takes place especially in two fields:

  1. In the development of the Common Law.
  2. In the interpretation of Statutes.

Their freedom is restricted by the principles of precedent and the supremacy of Parliament & by the principle of precedent and the rules of statutory interpretation. the courts cannot move out of there shoe of the legislature and make decisions or create laws but they need to be confined to their territories and therefore the guidelines given by them is to be followed until the legislature steps in to make law. There have to be some means under which the law is created like high and low parameters. ‘Judicial activism’ should not become ‘judicial adventurism’ and lead a judge going in pursuit of his own notions of justice, ignoring the limits of the law. The courts must be confident in giving the effect to a constitutional policy like equality, socio-economic justice, liberal interpretation and recognition of rights of the individuals giving effect to a more meaningful life etc.

Donogue V stephenson is that the best example of case ( Judges do make law). It is mentioned as Case Law or Judge Made Law. To eradicate the inequality and unfair decisions, The Court of Appeal set law each and every day, their decisions become law which creates flexibility and a progressive judiciary. The statute cannot be altered as it is literally written. The law on suicide and murder cannot be dealt by the judges because of the statute law and this can only be changed by the government who itself is the creator of law and is hence the foremost powerful lawmaker.

Do judges make law?

According to the official line, of course, the judges do not make law but they do make laws in three circumstances:


Parliament cannot define each and every possibility or define and explain every term in the statute, so there arises a requirement for the judge to interpret the statute such that it can be applied to the case before courts.


The situation may arise during which there is no express law. Example, the Factor tame cases, there was no law as to UK statutes were to be addressed once they, conflicted with EU law. As a result of decisions in EU courts, the House of Lords developed a new doctrine to permit the statute to answer the question without completely abandoning the principle of parliamentary supremacy. The development of new doctrine which lead to political instability resulting in fundamental changes like hack of UK constitution with European Court of Justice.

Example: This case represents that the judges must take care while changing the decisions or making any law. However, the judges sometimes fail to do so. we hence have a crucial criminal case of R v Dica (2004) the Court of Appeal overruled an earlier case of R v Clarence (1888) and held that criminal liability might be imposed on a defendant for infecting another person with HIV. This change in the law was made irrespective of the fact that the Home Office had earlier decided that such legislation should not be introduced which might impose liability in this situation. The Home Office observed that this was a case of social and public health policy.


There are various areas in which there is no statute law. In such a condition the judgements built by judges on existing cases are influenced by previous cases during a way that would be called lawmaking. For example the rule in Rylands v Fletcher and it’s amalgamation into a nuisance in the Transco case. Since 1966 it has been possible for the House of Lords to reverse its own previous legal decision – the apparent case is R v R (not A v A) concerning rape within marriage. Secondly, In R v Ahluwalia the wife during this case suffered from continuous threats like physical and mental from her husband and was brutally beaten up. One evening after being molested again she couldn’t fall asleep thinking about her husband’s behaviour so she went downstairs and poured petrol into a bucket and set fire to her husband’s bedroom. He died from his injuries, though her intentions were not to kill but only to inflict pain. The provocation was pleaded as a second line of defence supported her ill-treatment throughout the marriage, but she was convicted of murder. It was followed by an appeal.


Firstly start with the famous case Vishaka v. State of Rajasthan (1997) where the Supreme Court actually laid down the law pertaining to sexual discrimination at workplaces in the absence of a law governing the same.  In numerous other cases, courts have laid down policy guidelines, or have issued administrative directions to governmental departments.   In the recent case of  Suraz India Trust v. Union of India, a petition has been filed asking the court to reconsider its own judgements regarding the way of appointment and transfer of judges.  It has been contended that through its judgements in 1994 and 1998 in Advocate on Record Association v. Union of India, the Supreme Court has virtually amended Constitutional provisions, even though amendments to the Constitution can only be done by Parliament.  This question arises since the Constitution provides for the appointment and transfer of judges by the government in consultation with the Chief Justice of India.  The two Supreme Court judgements, however, gave the first power of appointment and transfer of judges to the judiciary itself.


The views regarding the functions of judges contain only a partial truth. Judges play both functions of making and declaring the law. However, the creative role of judges does not mean that judges made the law within the same sense in which legislation makes it. Judges function is extremely limited to interpreting the law.


This Article Written by Shivangi Yadav, Student of Jemtec School of Law, Greater Noida

Law Corner

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