There are two important law bodies in common law legal system: the statutory law, which derived from textual statues made by legislature and the common law, which derived from the accumulated cases and judgments made by court. The issue on whether judges make law has long been debated and from my personal view, I regard that judges, considering their nature and function, should be qualified to be lawmakers. From a historical respective, judges has played a considerable role in the early development of the common law.
G. Williams in his Criminal Law gives several examples, public nudity (1664), blasphemy (1676), forgery (1727), etc. to point out English courts do creat crimes. Even in modern time, many of the common law principles and their process were initiatively created by courts. There are several examples at hand. The "neighbor principle" established in Donoghue v Stevenson (1932) as a solution to the question of "duty of care" was an entire creation of judges within the area of law of negligence. That "it is the prosecution's duty to prove the defendant's guilty" established in Woolmington (1935) has been a golden thread through the entire fabric of the English criminal law.
All these illustrate that there is a tradition for judges to make law and the tradition still lively exist at present time. Facts are after all only facts, but are they fair and reasonable? My answer is "yes". First of all, the judges, generally speaking, are among the best educated, with a very firm background of legal expertise. It is said that majority of them have received sophisticated legal education from esteemed Oxbridge Law Faculty. Besides, most judges are from upper class families, which not only give them high social status but also support their careers.
(It is estimated the number of senior judges from upper class family background is three times more than those from lower class families. ) In a nutshell, being learned and with higher social status, judges have within themselves the capacity for lawmaking. Some may argue that it is the legislature's task to make law (statutes or codes) while the judicial role should be obeying and applying law to facts. This argument seems more appealing in countries with civil law legal system. We can not deny that the legislators are selected or appointed as the representatives of social justice and fairness.
Thus, they are well qualified to make law for the benefits of the state and the people. Yet, we could not understand the judicial role that narrowly. If we make a simile, then judging and lawmaking are the two sides of the judge's coin. We could not regard judges' work in court simply as a "transmission belt", but an active and initiative creation. From an external point of view, the legislature sometimes deliberately makes room in statutes for the judge to interpret, as it could not foresee every possibility in a particular case. You may argue that to interpret law doesn't amount to make law.
But if the interpretation is totally opposite to or beyond the legislature's original intent, which happens frequently, I am afraid we couldn't say that the judge doesn't make law. From an internal point of view, judges have been, almost without exceptions, successful barristers for many years before they take office. Having put much effort into practical work and dealt with all kinds of cases, they have very rich judging experience. This experience is both direct and resourceful, with which judges may not only understand a particular case more deeply but also envisage much more comprehensive possibilities than the legislature.
Therefore, we could trust that just like the legislature makes law through investigation and research of matters of the same kind, the judges make law via trials and analysis of concrete conditions. Others may have a dissenting opinion according to Stare Decisis (the Doctrine of Precedent), one of the core principles of common law legal system. They argue that since judges are bound by precedent, how we could say they make law. Honestly, thanks to concerns of certainty, predictability, consistent and coherence, judges defer to this principle most of time, even though sometimes they think of the former judgment as wrong.
Yet the principle of Stare Decisis could never be understood as the judges follow a precedent entirely and blindly. We could understand the word "bound" better if we learn when to be bound and how to be bound. First of all, unless the facts of the present case could not be "distinguished" from the former one, a judge can never refer to the Doctrine of Precedent. By saying so, I mean there are many cases similar in appearance but different in nature. Only in two cases whose "controlling facts" are similar could a judge apply the Doctrine of Precedent. This is the premise.
Secondly and more important, not all those written in the judgment of an earlier case has binding force. Here rises the question of ratio decidendi (the rule of law on which a later court thinks that a previous court founded its decision) and obiter dicta (a judicial comment unnecessary to the decision in the case). Obviously the former has a binding force and the latter is nonprecedencial, though it may be considered persuasive. Thirdly, there is a consideration of the changing circumstances. The influential elements in earlier cases may not exist as the time passes by or the space changes.
Therefore, even the judgment in an earlier case has some role of guidance and somewhat binding force; the judges are not and should not be bound entirely by former cases, but could still do as they see fit. Generally, the judges have two methods to avoid being bound by the precedent. First, they could analyze the facts of the two cases and find them not to be the similar necessary facts, thus the former judgment doesn't have binding force on the present one. Secondly, judges could take advantage of the flexible nature of common law to reinterpret the former comments, either narrowly or broadly, thus to achieve the avoidance purpose.
What I want to point out here is that if judges could overturn a former judgment, especially which is well and long established, how could we say they are not making law? What we should bear in mind is that in 1996, the House of Lords announced that it would no longer be bound by its earlier decisions without any authority awarded. Of course, this announcement couldn't be regarded as to abandon the Doctrine of Precedent, but it really gives a new definition both to the judicial role and to the stare decisis doctrine .