10 Do judges make law?
Now that you are familiar with the mechanics and practical side of doctrinal law, we can turn to look at an old philosophical question about this law. We have seen in this course that some cases are ‘hard’, meaning that there is not always a clear rule for a judge to follow. When this happens, judges seem to have a choice about which rule to make, and they often could choose between making a number of different new rules. We have also seen that historically, much of the common law was created by judges. Whether judges make law is important because it raises fundamental questions about fairness.
An important common law and human rights standard is that of the so-called ‘rule of law’. The rule of law requires (amongst other things) that the rules that apply to people’s behaviour are clear in advance. If judges make up legal rules only after you have already done something, this seems unfair because you could not have complied with a rule before it existed. A losing party in a court case might justifiably be upset at losing if the rule they should have followed is set out only after the dispute arose.
There is also another concern about judges making law: judges, unlike elected politicians, are not democratically accountable. If they are not accountable to the community, it seems wrong for them to be making the law. This is aggravated if you also recall that the individuals who become judges in England and Wales are not yet representative of the wider community.
In the past, the answer to such worries was said to be the ‘declaratory theory of law’. It was argued that judges did not actually make the law, they only declared what everybody knew the law was. For example, Sir William Blackstone wrote in 1766:
it is not in the breast of any subsequent judge to alter or vary from according to his private sentiments: he being sworn to determine, not according to his own private judgement, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one.
For a long time, the declaratory theory of law was widely accepted, but it was famously attacked by one of the most famous British legal philosophers, Jeremy Bentham. For example, in a colourful short pamphlet, he attacked the entire common law as ‘b*start law’ that was made ‘just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him for it’ (Bentham, 1823, pp.11–12).