Q.17 (d).”Do the judges make law or only declare the existing law” ? Refer to different theories in this regard. ,
“Judges are the discoverers of law, not the creators of law.” Comment.
Ans. There are two contrary theories regarding the question as to whether the judges declare the existing law or make the law i-e.,—
1. Theory that judges declare the law Or Declaratory Theory.
2. Theory that judges make the law Or Legislative Theory.
1. Theory that Judges Declare the Law or Declaratory Theory-The first theory is the declaratory theory, as propounded by Hale and Blackstone and supported by Dr. Carten. According to this theory no new law is created by the Judge. Courts of justice do not ‘make’ law, their duty is to ‘ascertain’ and ‘declare’ what the law is. Judges only discover the existing laws, the particular principle, that governs individual cases. Through their interpretation they give a new shape to the existing law.
Hale enunciates declaratory theory of precedents and contends that whilst Parliament alone legislates, in the strict sense, the Judges only expound the law, and their decisions are the best evidence of what law is. A necessary result of this theory is that the effect of the decision is retrospective, for it does not only declare what the law is but what it always has been. Nevertheless„ as Maine has pointed out, once the judgment has been declared and reported, we start with a new train of thought and frequently admit that the law has been modified.
According to Lord Esher, “there is in fact no such thing as judge-made law, for the judge do not make the law, though they frequently have to apply the existing law to the circumstances as to which it has not previously been authoritatively laid down that such law is applicable”. Declaratory theory is based on the fiction that the English law is an existing something which is only declared by the Judges. This theory is known as the traditional orthodox theory of judicial precedent.
2. Theory that Judges Make the Law Or Legislative Theory–The second theory is that Judges do not declare law but make law in the sense of manufacturing or creating entirely new law.
Bentham and Austin have attacked the traditional view as a “childish fiction” and have declared that Judges are in fact law-makers and fulfil a function very similar to that of the legislator.
According to Lord Bacon, the new points decided by the Judges is a direct contribution towards law-making. Prof. Dicey supports this view and gives example of English Common Law which has been made by the judges through their judicial pronouncements.
Prof. Gray also supports this law-making theory and says that Judges alone are the makers of law. He discredits the declaratory theory of judiciary law. Unquestionably there is much to be said for this point of view: nevertheless it is misleading to compare the function of the Judge with that of the legislator. Judges are without question, law-makers but their power of law making is not unrestricted; it is strictly limited. For Example-they cannot overrule a Statute where the Statute dearly lays down the law, further the Judge’s legislative power is restricted to the facts of the case before him.
Salmond a strong supporter of this view says that he is evidently troubled in mind as to the true position of precedent. He further says that both in law and equity declaratory theory must be totally rejected.
Conclusion—The above theories about making of law by the Judges are not exclusive of each other but they are rather complementary. And it will be seen that neither the purely declaratory theory nor the purely legislative theory represents the whole truth. Judges develop the law but cannot be said to legislate. The common law is not ‘made’ but has ‘grown’ and the “more it changes the more it remains the same thing.