The Role of Judges in the English Legal System with Respect to the Creation of Law
The Role of Judges in the English Legal System with Respect to the Creation of Law

Summary/Abstract: Although it is commonly held that the judges in England make the law, this opinion is neither shared by all theorists nor is it officially acknowledged by judges. The proponents of declaratory theory assert that the judges do not make the law and that the common law has been gradually developing and the judges only declare the law. They argue that there is only one answer to all questions of law. The theory supports the constitutional principle that the Parliament is the body that makes the law and the judges only apply what was set to be the law. Although the application of the theory sometimes lead to unwelcome consequences such as the retroactive nature of precedents, the judges are still divided over the issue and are reluctant to officially cast aside this theory. In my view, it seems clear that the judges do make the law. They can create new legal rules either by developing the common law or by interpreting the Statutes, particularly if purposive approach is used. The judges are lawmakers, albeit with limited power. In any case, it is the Parliament which indubitably has the last word. On the other hand, it must be kept in mind that the judges are not directly accountable to the people. Therefore, they should make law within the consensus of the society. Putting it in other words, if there is a gap in law, they should fill it and keep the pace with changes in society but while doing so they should avoid making controversial decisions. It is said that judges have to discard all prejudices and in the process of hearing cases they are not to take into account any consequences which are wider than direct concerns of the parties. Yet, the judges like any other professionals are susceptible to emotional prejudices and other factors. In this respect, it is worth mentioning that several publications proved that senior judges are of very narrow social and educational background, which makes them naturally to share common values. Although it appears that judges protect and conserve the values of a narrow social class, it is true that “somebody must be entrusted to guard our freedoms. Let it be judges” as Lord Denning expressed.

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