Do Judges Make Laws?

INTRODUCTION ..........................................................................................................................
DO JUDGES MAKE LAWS? ........................................................................................................ 4
METHODS OF JUDICIAL PROCESS .......................................................................................... 9
SOCIOLOGICAL METHOD OF LAWMAKING .................................................................. 10
HISTORICAL METHOD OF JUDICIAL LAWMAKING ..................................................... 10
PHILOSOPHICAL METHOD OF JUDICIAL LAWMAKING ............................................. 11
SUBCONCIOUS PROCESS .................................................................................................... 12
LEGAL IDEALS AND TECHNIQUES OF JUDICIAL PROCESS ........................................... 14
DOCTRINE OF STARE DECISIS .......................................................................................... 15

DOCTRINE OF RATIO DECIDENDI .................................................................................... 17
THEORY OF ADJUDICATION .............................................................................................. 17
LIMITATIONS TO JUDICIAL LAW MAKING ........................................................................ 19

CONCLUSION ............................................................................................................................. 22
Of the two agencies of law-making in our legal system, one is thoroughly conscious that it is
making rules and imposing standards, while the other purports to be wholly unconscious of
power to do anything of the sort1. The legislator, holding that law is a conscious product of the
human will, takes it for unquestioned that he has but to ascertain the will of the sovereign with
respect to the civic conduct of individuals and put such will in the form of chapter and section of
the written law. On the other hand, the judge, holding that law is something found, not made, that
it is reason, not will, and believing that in the long run conscious law-making can achieve little
beyond authoritative declaration of what has been discovered in the determination of
controversies, proceeds haltingly. He persuades himself to overlook the law-making function
which everyone who administers justice must necessarily wield. Hence the one is prone to
attempt far too much and to be careless how he carries out the details of what he attempt while
the other is too cautious. This project will explore whether judges create laws and if they do, then
the legal ideals and processes that guide them while doing so.
DO JUDGES MAKE LAWS?

Friedmann in his paper, “Limitations to judicial law making” describes the controversy of whether
judges make laws as a “stale controversy” 2 This chapter seeks to trace the evolution of this debate
and its impact in three nations- The United States, The United Kingdom and India.
US YESSS
UK TRADITIONAL
INDIA MEH
doctrine of separation of powers works mischief in confirming to the traditional notion that the law is
always discovered, that decisions are only declaratory, and that when a precedent is overruled the law
is not changed but instead a misinterpretation thereof is corrected.1
In India, the doctrine of checks and balances is being followed. All the three organs have checks on
each other. But the powers that the Judiciary has are much more than that of the other two organs. In
the name of placing checks the Judiciary encroaches upon the territory of the other two organs. In
India, the trend of Judicial Activism that is followed is, the judiciary filling up the grey areas left out
by the laws made by the legislature. The trend of Judicial Activism is said to have developed only
after 1964, when Justice Gajendragadkar was the Chief Justice of India.
METHODS OF JUDICIAL PROCESS

Curiously enough, the literature in which judges themselves speak of the processes by which they
reach their conclusions is very meager.
THEREFORE CARDOZO SIGNIFICANT
Consciously the judge resorts to logic (Lecture I, The Method of Philosophy), precedents, and a
consideration of the end to be served (Lectures II and III, The Methods of History, Tradition and
Sociology). The subconscious elements are dealt with in the last of the four lectures. The overlapping
in this analysis is clearly recognized by the judge: the precedents contain their own logic; stare
decisis has its function; so has the mere logical perfection of a system of rules. Yet this rough
classification proves quite workable. In fact, many an opinion proceeds by discussing the matter "on
principle" and then by "turning to “The Nature of the Judicial Process”, the authorities,
Mr. Justice Cardozo tells us judicial lawmaking is far from being a purely mechanical process, that it
is a matter of minute and delicate adjustments, which in its conscious form is an application of
philosophy, history and sociology, and subconsciously powerful forces direct and help determine
it.23
The historical, sociological, and psychological methods which the author sets forth are really
different in kind. They assist the judge in performing his really judicial task of selecting his major
premise.
Sociological- public interest
HISTORICAL METHOD OF JUDICIAL LAWMAKING

The judicial process, then, as presented by Judge Cardozo, may be said to consist in using history and
sociology to select the principles of our reasoning and logic in applying it. Where history, that is,
precedent, permits a choice, sociology will make it, and here logic will not help us, for it is the
conclusion that consciously determines the premise.
SUBCONCIOUS PROCESS
Perhaps the most important contribution of Mr Cardozo’s work is the judge's recognition of the
subconscious element. "Deep below consciousness are other forces, the likes and the dislikes, the
predilections and the prejudices, the complex of instincts and emotions and habits and convictions,
which make the man, whether he be litigant or judge.
LEGAL IDEALS AND TECHNIQUES OF JUDICIAL PROCESS

Constitutions are destined by their authors to form a fundamental law for the governance of a
politically organized group. When its interpretation is entrusted to the judiciary, an exalted task is
reserved with the judges and have momentuous consequences for wellbeing of the people, policy of
country etc. There are two cardinal problems in constitutional interpretation- uncertainty and
recognition or non-recognition of non-formal sources of constitutional adjudication.
Three methods of interpretation
Historical interpretation
Ambiguities and uncertainties while interpreting the constitutional provisions can be clarified by
referring to earlier interpretative decisions.
 Contemporary interpretation
The Constitution must be interpreted in the light of the present scenario. The situation and
circumstances prevalent today must be considered.
 Harmonious Construction
It is a cardinal rule of construction that when there are in a statute two provisions which are in such
conflict with each other, that both of them cannot stand together, they should possibly be so
DOCTRINE OF STARE DECISIS

REASONS AND IMPORTANCE OF THE RULE33.-The policy of the courts, and the principle upon
which rests the authority of judicial decisions as precedents in subsequent litigations, is embodied in
the maxim, Stare decisis et non quieta mnovere-to abide by the precedents and not to 'disturb settled
points.
DOCTRINE OF RATIO DECIDENDI

IN discussing the nature of a precedent in English law Sir John Salmond says: "A precedent,
therefore, is a judicial decision which contains in itself a principle. The underlying principle which
thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is
binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law
as regards the world at large." 40 The rule is stated as follows by Professor John Chipman Gray: "It
must be observed that at the Common Law not every opinion expressed by a judge forms a Judicial
Precedent.41 In order that an opinion may have the weight of a precedent, two things must concur: it
must be, in the first place, an opinion given by a judge, and, in the second place, it must be an
opinion the formation of which is necessary for the decision of a particular case. In other words, it
must not be obiter dictum.
LIMITATIONS TO JUDICIAL LAW MAKING

The continuing validity and importance of the basic separation of functions, in a modern legal
system, between the legislative, administrative and judicial branches of government is no less
important than the admission that the judicial branch does indeed play a vital part in the evolution of
the law. By and large, legislatures must be responsible for the formulation of general principles of
conduct which are of general, publicly promulgated and prospective applicability to a given
community for an indeterminate number of situations; administrators must apply such general
principles to more specific situations and often to specific groups within the community-even though
administrative orders and regulations often have certain legislative aspects; and the courts must apply
the prescriptions of legislators, or the generalized principles deduced from a series of precedents, to
individual disputes. Such a separation of functions is not confined to the democratic doctrine of
separation of powers; it is part of the essential structure of any developed legal system. 49 In a
democratic society, the processes of administration, legislation and adjudication are more clearly
distinct than in a totalitarian society, where legislative and administrative procedures tend to' merge
and the judges expected to be the executants of the political ideology of the government. But even in
such societies, the three functions remain generally separate.
Another important limitation upon the action of the courts is the presumption that a statute is valid
until it is complained of by someone whose rights are invaded. A party whose rights are not affected
by the statute cannot be heard against its constitutionality.50
While Judicial Activism has been widely accepted by everyone as the main intention behind it to
provide justice by interpreting the laws in relation to the present socio-economic scenario, Judicial
Adventurism is highly frowned upon. 51 There is a very thin line between Judicial Activism and
Judicial Adventurism. When the judiciary crosses the line to become judicial
CONCLUSION
Therefore, it can be concluded that Judges create laws. While some believe that the judges create
laws in case of absence of laws, others believe judges do so for public interest and give a liberal, not
literal interpretation to law. However, doctrines such as Balance of Powers and checks and balance
provide a support to the traditional declaratory role for judges. Some limitations are very important
for limiting the legislative function of the judges. The judicial process is based on reason of judges,
not their individual whims and fancies. Therefore the Hypothesis stand proved. The considerations
that go while deciding cases are philosophical, sociological and historical methods as defined by
Justice Cardozo in his famous book, The Nature of Judicial Process.
Starting with purely mechanical modes of ascertaining facts, the law has gradually developed rational
methods. In the immediate past the social facts required for the exercise of the judicial function of
law-making have been arrived at by means which may fairly be called mechanical. It is not one of the
least problems of the sociological jurist to discover a rational mode of advising the court of facts of
which it is supposed to take judicial notice.
Enforcement and application are the life of law. But we have spent our whole energies upon making
rules and have seemed to rely on faith that they would vindicate themselves. More than anything
else, attention to procedure and to the enforcement of rules and their application in practice will
relieve the present tension. The Puritan ideal of judicial machines bound down by a multitude of
detailed rules has proved inadequate. If legal history may be vouched, the way out lies in strong
courts with full powers of doing justice, guided by principles furnished by the law-giver, but not
hampered by an infinity of rules, the full effect whereof in action no one can hope to foresee.

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INTRODUCTION ..........................................................................................................................

DO JUDGES MAKE LAWS? ........................................................................................................ 4

METHODS OF JUDICIAL PROCESS .......................................................................................... 9

SOCIOLOGICAL METHOD OF LAWMAKING .................................................................. 10

HISTORICAL METHOD OF JUDICIAL LAWMAKING ..................................................... 10

PHILOSOPHICAL METHOD OF JUDICIAL LAWMAKING ............................................. 11

SUBCONCIOUS PROCESS .................................................................................................... 12

LEGAL IDEALS AND TECHNIQUES OF JUDICIAL PROCESS ........................................... 14

DOCTRINE OF STARE DECISIS .......................................................................................... 15

THEORY OF ADJUDICATION .............................................................................................. 17

LIMITATIONS TO JUDICIAL LAW MAKING ........................................................................ 19

DO JUDGES MAKE LAWS?

METHODS OF JUDICIAL PROCESS

THEREFORE CARDOZO SIGNIFICANT

Sociological- public interest

HISTORICAL METHOD OF JUDICIAL LAWMAKING

LEGAL IDEALS AND TECHNIQUES OF JUDICIAL PROCESS

Three methods of interpretation

DOCTRINE OF STARE DECISIS

DOCTRINE OF RATIO DECIDENDI

LIMITATIONS TO JUDICIAL LAW MAKING

Justice Cardozo in his famous book, The Nature of Judicial Process.

which it is supposed to take judicial notice.

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