Of late there has been lot of debate about the role of judges when it comes to “making” law. Any law book would give you the definition of a judge as the one who “applies the law” that has been laid down by our constitution. It would be interesting to note that in spite of such clear characterization, judges have over and over again “made” laws. The question that arises is: Are they entitled to such privileges? Definitely not. However, when facing with a prospect which had no precedent, how is the judge going to deliver justice? Societies change and so do cultures with passing time.
Issues which were unthinkable centuries back are a common sight today. Take for example, gay marriages. There is no ruling regarding such marriages as those were unconceivable back then. Yet today there are so many cases in court dealing with homosexuality. How the judges are supposed to judge in such cases? These are the classic examples where “bench legislation” is quite acceptable. Judges should “make” laws if it is relevant to the present times. Century-old legislations can’t be applied to every generation as every generation has different needs and different way of looking at things.
Nevertheless, the judge’s first and foremost concern would be to follow the rules laid before him/her and evaluate with the years of experience he/she has. The liberty to “make” law should come into picture only when there is a threat of infringement of basic rights like life, freedom, etc. Moreover, though the “bench legislation” is favored in certain conditions, it would also be dependent on the particular judge’s inclination with regards to his political and religious affiliations. Judges are supposed to be impartial. Still a high degree of risk is involved when an individual goes about “making” laws.
The only faculty he uses is his rational being and rationality for each one of us is different! That's why; it would be advisable if judges would refrain from the task of “making” laws. As an alternative, it would be proper if they stick to the basic definition of the position they hold – “Apply law to the best of circumstances” and do so till there is no law that fits the circumstance.
Pearcey, Nancy, Why Judges Make the Law: The Roots and Remedy of Judicial Imperialism, Dec 1, 2000. Human Events <http://www. arn. org/docs/pearcey/np_judges1200. htm>