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Do the Judges make Law?
There are two contrary views on the issue. First theory says that judges only declare the existing law while the other theory is of the opinion that judges do make law. The theories are:
Declaratory Theory, Judges declare law:
The theory suggests that judges while delivering judgments do not make law but declare them. They discover a law and then declare it. Blackstone, the great exponent of this view, says, ‘A judge is sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law but to maintain and explain the old one jus di cere et non-jus dare.’ Judges are law-finders rather than law-makers.
Dr. Carter, a strong supporter of Blackstone’s view, says ‘the judges were the discoverers and not the lawmakers of the law. If what the judges did was to declare a law not before existing, the subjection by them of one of the parties to liability for an infraction of the law in a transaction occurring before the existence of law would be an indefeasible outrage.’ Carter suggested that decisions merely declare the existing law.
In Rajeshwar Prasad v. The State of West Bengal,[i] Justice Hidayatullah stated: “No doubt, the law declared by this court (Supreme Court) binds Courts in India but it should always be remembered that this Court does not enact.”
This theory that judges declare the law and not make it has been highly criticized too. Bentham and Austin both rejected it. Bentham pointed out about this theory, “it is a willful falsehood having for its object the stealing of legislative power by and hands which could not or does not openly claim it.” Austin said that the theory is a childish fiction employed by our judges that Common Law is not made by them; but is a miraculous something made by nobody, existing, I suppose, from eternity and merely declared from time to time by the judges.
Original Law Making Theory, Judges make law:
According to this theory, Judges make law in the same sense in which the legislative body of the State does. This theory owes its existence in English Law where Judges have played a significant role in molding the law as Common Law is also known as the Judge-made law. Prof. Dicey says that a large part and as many would add the best part of the law of England is judge-made law, that is to say, consist of rules to be collected from the judgments of the court. Radcliffe states “There was never a more sterile controversy than that upon the question whether a judge makes law. Of course, he does. How can he help it.― Judicial Law is always a reinterpretation of principles in the light of a new combination of facts. Judges do not reverse principles, one well established, they do modify them, extend them, restrict them and even deny their application to the combination in hand.”[ii]
In Keshwanand Bharti v. State of Kerala[iii], the following observations of Justice Homes were approved: “I recognize without hesitation that judges do, must legislate, but they can do so only interestless; they are confined from molar to molecular motions.”
The application of both the theories depends on the legal system of the State. In common law states, the judges play a vital role in lawmaking while in states where the law is codified, they are less relevant and only interpret laws.
Merits of the Doctrine:
- Shows respect for the opinion of one’s ancestors.
- Based on custom and that’s why they get the support of the general public.
- It brings certainty and solidarity in law.
- Precedents are based on practicality and it fulfills the needs of the law more suitably.
- Precedents provide ease to judges, lawyers as well as the general public as it saves expense and avoid delay and inconvenience to them.
Demerits of the Doctrine:
- The increasing number of cases have brought the possibility of overlooking authorities.
- The conflicting decisions of superior courts did not help lower court and put them in dilemma.
- The development of law depends on the litigation i.e. if there is no litigation on an important issue, the law will remain unadjudicated.
- Due to this doctrine, sometimes, erroneous decisions are settled as law for a long time.
Conclusion:
The courts are performing a valuable role in recent times. They are not only deciding cases but also actively participating in social upliftment. The rule of precedent has established its place in Indian judiciary. It brings integrity and uniformity in law and legal system. The only need of the time is to save energy in finding out the law from the rapidly multiplying volumes of reports and avoid the constant danger of overlooking authorities.
[i] AIR 1965 SC 1887, 1891
[ii] Radcliffe quoted in Robert Stevens, Law & Politics, The House of Lords as a Judicial Body (p. 44).
[iii] AIR 1973 SC 1461
Books referred:
- Aggarwal, Nomita, Jurisprudence (Legal Theory), Central Law Publications, Allahabad, 2012.
- Tripathi, B.N. Mani, Jurisprudence(Legal Theory), Allahabad Law Agency, Faridabad, 2015.
- Singh, Dr. Avtar, and Kaur, Dr. Harpreet, Introduction to Jurisprudence, Lexis Nexis, Gurgaon, 2013.
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