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Background to study

Judges make law.[1]  This fact—and its consequences—has been a key area of study and debate in the legal academy.  Concepts such as the countermajoritarian difficulty[2] and judicial activism,[3] as well as numerous jurisprudential theories, are all concerned with the propriety of such lawmaking and how judges should (or should not) perform their lawmaking functions.  Such scholarship tends to draw a distinction between judicial lawmaking and legislative lawmaking.  While democratically elected legislatures are free to base lawmaking decisions on raw political, ideological, or personal considerations, judicial lawmaking is supposed to be a more refined art—one that accounts for past legal precedent and is based on a coherent analysis of what the law “is,” rather than what it “should be.”[4]

As a practical matter, however, judges make law even when their decisions are inelegant, incoherent, or inconsiderate of the relevant legal sources, arguments, and implications.  Such decisions may deserve criticism and may even be deemed “wrongly decided.”  Nonetheless, it is still the judges—not the critics—who make law, and a poorly reasoned decision can still be an effective act of judicial lawmaking.  Just as a legislature makes law even when the resulting statute resembles a pig’s ear[5] and the legislative process a sausage factory,[6] so can the judiciary make law even when its decisions fail to meet the standards of judicial lawmaking that many expect.

This article embraces the comparison between judicial and legislative lawmaking, and views judicial lawmaking through a legislative lens.  While many perceive legislative lawmaking as being subject to no constraints other than the next election, the truth is that legislative lawmaking is not unbounded. Legislative lawmaking is typically constrained by a constitution, one which sets procedural and substantive limits on the lawmaking function.

Constitutionalism, as Frank Michelman has stated, is the “‘law of lawmaking’ . . . that controls which further laws can be made and by what procedures.”[7]In our system, the process of judicial review provides for meaningful enforcement of these constitutional norms, because unconstitutional laws may be invalidated.  The character of legislative lawmaking, therefore, depends in large part on the constitutional requirements with which such lawmaking must comply.  This is, no doubt, why the scope and meaning of these constitutional limits garners such a large share of attention.

It is how ever important to  inquiry into  whether the principle sets an enforceable restriction on judicial lawmaking, such that actors other than the initial lawmaking tribunal may treat an attempt at judicial lawmaking as invalid if it runs afoul of that principle.  Such restrictions are “constitutional” in the sense that they set substantive limits on judicial lawmaking and the procedures with which judicial lawmaking must comply.

Objective of the study

It is against this backdrop that this paper examines the reoccurring question “do judges make law?” with a view to situating its strategic utility on exploring different schools of thought on the subject matter and criticisng their theorectical backing.

Scope of The Study

The enormity of the subject matter has led to the selection of some theories supporting the claims of various authors. In general, reference is made to the functionality of the declaratory theory in common law.

Research Methodology

This research methodology is normative or doctrinal research (library research). Normative legal research is the legal researches which use the law as foundation of norm. The norm system in question is related to principle, norm, and rule from legislation, verdict, treaties, and doctrine concerned annulment of an arbitration award.[8] First stage of normative research comprises a research with purposes to achieve objective law, by conducting research on legal issues. The second stage of normative legal research is aimed at obtaining subjective law (rights and obligations).[9] It also concerns with critical review of legislation and of decisional processes and their underlying policy

Literature review

Supporters of this theory argue that judges do not make laws; they only discover the law and declare it and not more than that.[10] They only declare what had been the law and they do not introduce new laws. This view has been supported by various jurists. 

In supporting this view sir Mathew Hale wrote ‘the decision of courts of justice do not make law properly so called, for that only king and parliament can do

Blackstone[11] pointed out that; ‘they (judges) are depositories of the law…A judge is sworn to determine, not to accord to his private judgment but according to the known laws and custom of the land; not delegated to pronounce a new law but to maintain and explain the old one

Edward coke had a view that; the judicial decisions do not constitute a source of law but rather a proof what the law is’[12].

Some judges also do not agree that they make laws. For example in Reshwar Prasad V. State of west Bangal[13] the supreme court of India stated, “no doubt the decision by the Supreme Court binds all subordinate courts it should always be remembered that it (the Supreme Court) do not enact”. 

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