A consideration of whether Judges in England & Wales can create law. This involves an examination of the operation of the common law rules.
Do judges make Law?
On a cursory consideration, it would seem illogical that judges can make law, as to have the ability to create law, as well as rule on it, may seem unfair. However, there is one way in which judges may be considered to make law, which is via the operation of the common law.
Common law refers to the judicial system which bases interpretations of law on prior judicial decisions, rather than solely on legislation. This is on a case-by-case basis, which allows the law to develop with societal needs. Therefore, it may be argued that judges make law, as when they make a decision, this decision sets a precedent and creates a new interpretation of the law, which must then be followed in courts lower in the judicial hierarchy. This is known as ‘judge made law’.
An examination of a practical example of judge made law is helpful in understanding this principle. Legislation will often have an inherent ambiguity due to the lack of a definition for each word in a statute. Take for example, the case of R v Harris (1836), in which the defendant bit off his victim’s nose. The statutory offence he was charged with was “to stab, cut or wound”, and the judge was required to interpret the statute and decide whether it would include to bite. In this case, the judge held that biting was not included, hence ‘making’ a law by providing this interpretation which did not include biting that would have to be followed in subsequent cases.
Therefore, judges can be seen to make law, albeit not in the traditional sense of creating legislation.
R v Harris (1836) 7 C & P 446