Judges have been making new law for at least 700 years. For most of that time, they tried to hide this uncomfortable fact from public: they called judge-made law the common law, as if to suggest it has always been with us, permanent and unchanged. In order to disguise the reality of the law making process, legal writers of the eighteenth and nineteenth centuries maintained that the common law consisted of ancient customs and usage's that had been known by the judges.
According to this the judges' job was to expound, declare and publish the law; their decisions were not law but merely evidence of what the law has always been. Although this theory does not sound strange, I -and with me many others- cannot concur with it. I think that here in England1 and even -in earlier times- in the rest of Europe, the judges2 were actually making the law and therefore making a policy. "…. practically the whole framework of the modern law … was constructed by the judges in a conscious policy of moulding and
adopting the principles of the common law in a response to the changes of society. " Lord Chancellor Lord Mackay3 Nowadays, the primary function of law making rests with Parliament. The government, the executive branch, must act within the law and the courts must apply and give affect to it. The courts still play a major role in developing the common law, but that role is just in developing, not creating wholly new law, says Lord Mackay. Mackay's standpoint (based on Montesquieu's Trias Politica) does not answer the essay question 'Should judges ever make law? '.
Although there are many opinions on this subject, I think that by developing (and by interpreting) the law, the judges make the law or at least declare the law. Because from the moment the judge 'develops or interprets' the law, that law is, how the judge said it is. The question then should be, how far can the judges go in their law making/declaring? First, I will take a short look some pros and con's of judges making law in the next paragraph4, while reviewing some (important) cases. Then, I will concentrate on R. M. Dworkin's (and H. L. A. Hart's positivist) views on this topic.
Should judges be allowed to make the law? Review of a policy Most areas of state activity are covered by existing policies. From time to time, a question arises whether existing policy should be reviewed in the light of new evidence about its effectiveness or appropriateness. In principle, courts accept such a duty. For example, in British Oxygen Corporation v. The Ministry of Technology5 the policy at issue had been expressed in the form of administrative rules, made for reasons of convenience and expediency and contained little ideological or party political content.
If this is the case -there is no high value content in the policy- the policy-maker 'ought to listen to a substantial argument reasonably presented urging a change of policy6' and may even have to change that policy if that is the reasonable thing to do. Presumably if it could be established that a public authority had found its policy to be ineffective or even wrong, the courts would be willing to require a policy review if the authority failed to conduct one. The Master of the Rolls stated in R. v. Oxford, ex p. Levey7, '…
Any officer who found that his chosen methods were [proven] ineffective would be under a duty to re-examine them and consider what alteration was required… ' Most policies are a mixture of facts and value judgements, if the decision is mainly based on facts, it should be possible to establish the rationality of the policy. But, if the facts are of minor importance when weighed against the element of value judgement in the policy, it would almost be impossible for the courts to establish that a policy is wrong, and therefore it hardly happens.
If the law is changed, it is mostly done by The House of Lords8. The highest appellate court in the United Kingdom is often asked to change the law and sometimes it agrees. Because the judges are aware of the fact they are not elected, and therefore not democratic legitimate, they are very careful -as we will see later on- in changing the law. The law lords may step in if they feel there is a clear public agreement on how the law should develop. On other occasions, when there is no consensus and therefore no prospect of Parliament acting, they will act9, although with some reluctance.
Either way, they are likely to be criticised for developing the law in a particular direction without the agreement of Parliament (and the public). Despite the critique, sometimes, particular decisions just need to be made. Establishing the law: the martial rape-case10 For more than 250 years the law allowed a man to rape his wife. 'the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her
husband which she cannot retract. ' Sir Matthew Hale11 This 17th century statement was regarded as accurate until the Second World War. Gradually, however, the courts started allowing exceptions to it, but it took until the nineties -while there still wasn't any statute on this topic- that rape, in marriage, became a crime. The husband took his case all the way up to the House of Lords, and even to the European Court of Human Rights. The law lords upheld his conviction by stating 'The common law is …
capable of evolving in the light of changing social, economic and cultural developments12'. The Court of Human Rights unanimously dismissed the claim of the husband that his conviction was amounted to a breach of article 713 of the Human rights Convention. The rulings were widely welcomed. The judiciary made it easy for the legislator, the judgements were put on to a statutory footing14. Although this was unnecessary, it served to remind the courts that Parliament still felt it had some role to play in the law-making process.
Not always is the government pleased with the judgement of the court, for example when the courts exercise a supervisory jurisdiction on matters such as the limits of an authority's powers, which affect the legality of official decisions. The judicial control, which exists even when there is no right of appeal against the administrative decision, doesn't go into the merits, expedience or efficiency of decisions. It ensures that decisions are made on such grounds conform to the law and that standards of fair procedure are observed.
Judicial review: the GCHQ-case When a power vested in a public authority is exceeded, acts done in excess of the power are invalid as being ultra vires. The ultra vires rule cannot question the validity of an Act of Parliament, but it serves to control those who exceed the power they have been given by an Act. Judicial review on the other hand, covers all acts taken under the prerogative. Judicial review is judge-made law; the rules to keep someone, who is given a discretion, in line, are generally set up by the courts.
In 1984, in the famous GCHQ-case15, the criteria for judicial review were reformulated16. The first one is reasonableness17, or irrationality as Lord Diplock calls it, what means that if a decision is challenged as unreasonable, the court must decide whether the power under which a decision-maker acted has been improperly exercised. The second, procedural impropriety18, points out the failure to act fairly, i. e. the decision-maker did not follow the correct procedure.
The third one I mentioned above, is the ultra virus rule19. Lord Diplock also suggested a fourth ground for judicial review, proportionality. This ground, the balance between the aims of the policy and any adverse effects it may have, is now established in English law. In the GCHQ-case, were it was held that a politically very sensitive decision, the banning of trade unions at Government Communication' Headquarters, made by the Prime Minister, should in principle have been preceded by consultation.
The House of Lords hold that the exercise of prerogative powers may be subject to judicial review, just as the exercise of statutory powers may be. Of the different grounds of review, procedural impropriety was the most relevant, i. e. the trade unions should have been consulted in advance. Nevertheless the governments decision was allowed on grounds of national security.