Do judges make law?

Answer:
For long it has been the received opinion that judges filled in the gaps left by rules by using their
discretion. Positivistic jurisprudence from Austin to Hart placed strong emphasis on the part
played by judges in the exercise of their discretion. "In these cases it is clear", Hart has said,
"that the rule-making authority must exercise discretion, and there is no possibility of treating the
question raised by the various cases as if there were one uniquely correct answer to be found, as
distinct from an answer which is a reasonable compromise between many conflicting interests".
A competing view was espoused by the realists who placed absolute emphasis on the discretion
of judges and relegated the "rules" to an obscure position. Earlier, little attention was paid to the
analysis of discretion. However, a determined effort has been made lately by Ronald Dworkin,
who has cast serious doubts on the orthodox opinion and has emerged as the principal opponent
of Hart. Dworkin's views have posed a sustained challenge to the positivist account and have
received critical acclaim by leading jurists of the world.
In 1345, an English lawyer argued to the court, "I think you will do as others have done in the
same case, or else we do not know what the law is." "It is the will of the Justices," said Judge
Hillary. Chief Justice Stonore broke in: "No; law is that which is right". This controversy
between the two judges is still ranging after six and a half centuries. In modern terms, the
problem can be phrased in order to know exactly what part do judges play in the development of
law; "Do Judges Make or Declare Law".
Argument to this paper concentrates on the belief that in "hard cases" judges can and do create
new law. In the paper, it seems that there are clear indications that judges do indeed create new
law where, for example, existing laws have become outdated or inappropriate. This thesis
essentially stems from the views of the famous common law theorist, Hart, a legal positivist who
sees the fusion of primary and secondary rules as being the determinant of what later becomes
known as a legal system. But another thinker, Dworkin, is vehemently against the law making
power of the judges. For him, there is no law beyond The La". The law is a seamless web in
which there will always be a right answer. This paper will analyse the philosophical Hart-
Dworkin debate on adjudication taking Raz also with them and then apply it to the practical life
in the Indian context to conclude that judges make law out of what they discover in the legal
field.
This paper will proceed to answer two questions:
1. Is it possible to reach on a consensus on judge's role through a philosophical way?
2. Assuming that judges don't make law; then is it always possible to declare law?
First question:
How Do Judges Make Law? What opportunities do judges have to be creative? These are the
questions, which the philosophers have in the back of their mind while talking about the judge's
role during adjudication. It is said that judges make new law or so-called creative especially in
two fields:
1. In the development of the Common Law and,
2. In the interpretation of Statutes
Nevertheless, their freedom is restricted by the rules of precedent and the supremacy of
Parliament & by the rules of precedent and the rules of statutory interpretation.
Judicial Precedent: The application of precedent by judges, whether they are developing the
common law (for e.g. in areas such as negligence or murder), or interpreting statutes is the main
mechanism whereby judges make law. Occasionally, judges are called upon to give a ruling or
make a decision when faced with a situation for which there seems to be no precedent or any
guiding rule. In these circumstances, judges can be said to be formulating original precedent.
Thus, it is the judge's role to use his own discretion regarding when he thinks rules need to be
applied, changed, improved, or abolished. For this reason, although Hart sees the function of law
as being one of a system of rules, he maintains a firm belief that where there are gaps in the
system judges should use their own discretion when applying the law. Hart believes that because
statutes and common law rules are often too vague and unclear it is often inevitable in "hard
cases" for a judge to create new law. He talks about the open texture of law means that are,
indeed, areas of conduct where courts or officials striking a balance, in the light of
circumstances, between competing interests, which vary in weight from case to case, must leave
much to be developed.
But according to Dworkin, principles are essential elements in deciding these types of hard cases.
He seeks to argue that in all cases a structure of legal principles stands behind and informs the
applicable rules. Principles control the interpretation of rules. Rules derive their meaning from
principles. Judges, through the rules of precedent, merely discover and declare the existing law
and never make 'new' law. A judge makes a decision, '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 expound the old one'. He is against the judge made law mainly because of
two objections. The first argues that elected representatives who are responsible to the people
should govern a community and when judges make law it will be an encroachment on legislative
power. The second argues that if a judge makes new law and applies it retroactively in the case
before him, then the losing party will be punished, not because he violated some duty he had, but
rather a new duty created after the event. Countering Dworkin's first argument, Hart says that
judge's power is subject to many constraints narrowing his choice and judge's power are
exercised only to dispose of particular instant cases; he cannot use these to introduce large-scale
reforms or new codes. Even though if they make new law, it is in accordance with principles or
underpinning, reasons recognized as already have a footing in the existing law. This indeed is the
very nucleus of the "constructive interpretation" which is so prominent feature of Dworkin's
theory of adjudication.
Dworkin also talks about the discretion but for him judge's choices are within the constraints of
judgment, which he called as weak discretion. Dworkin does not deny the need for weak
discretion but he denies the existence of strong judicial discretion. Judges do not make law
because the existing law provides all the resources for their decisions. A judge does not decide a
case in a legal vacuum but on the basis of existing rules, which express, and, at the same time,
are informed by, underlying legal principles. The task of the judge faced with a hard case is,
therefore, to understand what decision is required by the whole doctrinal structure of existing
law.
Regarding Dworkin's second criticism, Hart says that this objection seems quite irrelevant in
hard cases since these are cases, which the law has left incompletely regulated, and where there
is no known state of clear established law to justify expectations.
It's true that in every legal system, a large and important field is left open for the exercise of
discretion by courts in rendering initially vague standards determinate, in resolving the
uncertainties of statutes, or in developing and qualifying rules only broadly communicated by
authoritative precedents. Nonetheless, these activities, important and insufficiently studied
though they are, must not disguise the fact that both the framework within which they take place
and their chief end product is one of general rules. These are rules the application of which
individuals can see for themselves in case after case, without further recourse to official direction
or discretion.
According to Hart, law in the area of open texture is a guarded prediction of what the courts will
do. Even if the rules are clear to all, the statement of it may often be made in the form of a
prediction of the court's decision. But the important thing to be noted here is that the basis for
such prediction is the knowledge that the courts regard legal rules not as predictions, but as
standards to be followed in decision, determinate enough, in spite of their open texture, to limit,
though not to exclude, their discretion.
Judges do not generally, when legal rules fail to determine a unique result, intrude their personal
preferences or blindly choose among alternatives; and when words like choice and discretion, or
phrases such as creative activity and interstitial legislation are used to describe decisions, these
do not mean that courts do decide arbitrarily without elaborating reasons for their decisions. And
in case if there is any arbitrariness then legislature is always there to negate it down.
According to Raz, also, courts do develop the law; they do not as political agents but by working
out the implications of internal legal considerations. Courts in developing the law do not give
expression to their personal views, nor do they reflect external social or political forces. Rather,
they unravel the spirit of the law, unfold its hidden force and reveal its meaning. He says that
judges can make the law even when precedent binds them by distinguishing it with the previous
decision but this is very restricted form of law making subjected to two crucial conditions.
Firstly, the modified rule must be the rule laid down in the precedent restricted by the addition of
a further condition for its application and secondly, the modified rule must be such as to justify
the order made in the precedent. The judge's obligation is to adopt only that modification which
will best improve the rule. In the exercise of their law-making power the courts should- within
the legally imposed restrictions act by adopting the best rules they can find. They may make a
new rule in a decision, which he thinks is a purely law-applying decision.
Thus on the basis of the above debate, discussion can be boiled down to the point that judges
declare the law and the question of their making law can be defended by saying that their
invention is merely discovery of law within the existing precedents and principles. Limited
choice cannot be termed as absolute power; it is just a weak discretion, as Dworkin will say it,
constrained with certain limitations. Hart's open texture of law is also not enjoying the freedom
from legal constraints; they have to also take guidance from the legal rules considering them
their standard. Same with Raz too.
But is it always possible to declare law, taking into consideration about our practical life
situation.
This leads us to our second question.
Second Question:
I blieve that we must do away with 'the childish fiction' that law is not made by the judiciary. -
Sabyasachi Mukharji, C.J.
In C. Ravichandran Iyer v. Justice A.M. Bhattacharjee , the court said that the role of the judge is
not merely to interpret the law but also to lay new norms of law and to mould the law to suit the
changing social and economic scenario to make the ideals enshrined in the Constitution
meaningful and a reality. The society demands active judicial roles which formerly were
considered exceptional but now a routine.
In S. P. Gupta v. President of India the court observed: The interpretation of every statutory
provision must keep pace with changing concept's and values and it must, to the extent to which
its language permits or rather does not prohibit, suffer adjustments through judicial interpretation
so as to accord with the requirements of the fast changing society which is undergoing rapid
social and economic transformation.
The court also went on to say that:
"....law does not operate in a vacuum. It is therefore intended to serve a social purpose and it
cannot be interpreted without taking into account the social, economic and political setting in
which it is intended to operate. It is here that the Judge is called upon to perform a creative
function. He has to inject flesh and blood in the dry skeleton provided by the legislature and by a
process of dynamic interpretation, invest, it with a meaning which will harmonise the law with
the prevailing concepts and values and make it an effective instrument for delivery of justice."
It is clear from the above statements that, not only constitutional interpretation, but also statutes
have to be interpreted with the changing times and it is here that the creative role of the judge
appears, thus the judge clearly contributes to the process of legal development.
The courts do not always follow the precedent blindly and do not always consider themselves
bound by the given principles. The court does evolve new principles. However, the courts do
always have to follow within the limits of the constitution and they cannot exceed the
constitutional limits. "When new societal conditions and factual situations demand the Judges to
speak, they, without professing the tradition of judicial lock-jaw, must speak out."
Also, in M.C. Mehta v. Union of India (Shriram - Oleum Gas) the court said that with the
development and fast changing society the law cannot remain static and that the law has to
develop its own new principles. The above decision reflects that the courts do make law, they
frame new principles; interpret the statutes and the constitution with the changing times.
Justification:
"The courts must not shy away from discharging their constitutional obligation to protect and
enforce human rights of the citizens and while acting within the bounds of law must always rise
to the occasion as 'guardians of the constitution', criticism of judicial activism notwithstanding"
It has been accepted that judges filled the gaps left by rulers, by using their discretion. Austin
accepted the utility of legislation by judges. He says:
"I cannot understand how any person who had considered the subject can suppose that society
could possibly have gone on if judges had not legislated, or that there is any danger whatever in
allowing them that power which they have in fact exercised, to make up for the negligence or the
incapacity of the avowed legislator."
The realists also emphasised the paramountcy of the judge's discretion. They argued that judges
did make law. The focus of realism was on decision-making. They argued that legal concepts
and rules were often indeterminate and rarely as neutral as they were presented to be.
Adjudication can rarely be seen as a mechanical logical deduction from general premises. In
some cases, there remains a gap between the general propositions or the statute couched in
general terms and the result of particular cases. The realist argued that 'public policy'
considerations play a major role in the determination of cases.
In his book Law's Empire , Dworkin has depicted the position of an imaginary judge, Justice
Hercules and his constitutional interpretation and the power of judicial review. On the issue of
passivism and activism, his judge achieves a balance. He will not always defer to judgment of
the elected officials, irrespective of the scheme of the constitution. Thus, he will protect
democracy and the rights of the minorities instead of yielding to what the majority's
representatives think is right. However, he will defer to the opinion of the legislature when he
thinks that the issue is one of policy rather than principle.
A law when enacted, in spite of the best effort and capacity of the legislator, cannot visualise all
possible situations in the future to which that law requires application. New situations develop
and the law has to be interpreted for the purpose of application to them. That is the area or field
of judicial creativity to fill in the gap between the existing law and the law as it ought to be.The
judges have to be alive to the reality that as society changes, the norms acceptable to society also
change, and that while discharging the constitutional duties, they have to develop the law on
those lines. Judicial activism in India encompasses an area of legislative vacuum in the field of
human rights and it reinforces the strength of democracy.
An argument is given that the interpretation should be limited to what the constitution makers
actually intended. However, it has been questioned whether the word or expression must mean
the same thing at all times regardless of times or circumstances? The court has observed that the
interpretation of the constitution only on the basis of what the original framers intended, would
not be correct, for there may have been various situations that could not have been foreseen at
that point of time, there may be issues that may not have been fully discussed, and there may
even be issues that were left as controversial. It has also been submitted that such an
interpretation and confining oneself only to that interpretation would amount to killing the
constitution and be 'wedded to the status quo'.
Directions by the courts
The limits that are on these directions as the courts have said are that these do not amount to
stepping into the shoes of the legislature and that the guidelines given by them are only to
operate till the legislature steps in to make a law. However, this is not to say that the courts can
do what they want. There has to be a mean found between too much activism and too little
activism. The former might lead to a imperilling the legitimacy of judicial power and the latter
may lead to neglect or under enforcement of the constitutional obligation of achieving and
protecting the rights of the citizens, ensuring good governance and achieving the constitutional
goals. 'Judicial activism' should not become 'judicial adventurism' and lead a judge going in
pursuit of his own notions of justice, ignoring the limits of the law.
The courts do not and should not hesitate in giving effect to the 'constitutional policy' i.e.
equality, socio-economic justice, liberal interpretation and recognition of rights of the individuals
giving effect to a more meaningful life etc.
An important point that is to be emphasised is that, since the judiciary is exercising such a
powerful role, it should be more open to criticism and the contempt power should be used only
rarely. Otherwise, it will reflect on the judiciary as a dictator. According to Dworkin, judges
have a duty to use some principles but not others, or to assign a given weight to one principle but
not a greater weight, it follows that Dworkin himself is committed to the idea that there is a
fundamental test for law. That Dworkinian theory itself depends upon some notion of a basic rule
of recognition.
In response to this objection, Dworkin asserts that Hart's theory of the rule of recognition does
not simply claim that there is a criterion distinguishing law from non-law. Hart must claim,
according to Dworkin, that laws are identified by pedigree and not by content, that is, a rule
counts as law not because it is just or fair (a matter of its content) but because it has been laid
down in a statute or established in a case (a matter of source or pedigree). Hart says that the
whole point of having a rule of recognition is to provide a body of publicly ascertainable rules, in
the sense that we can work out what the rules are without falling back on our value judgments
about justice or right (moral) which, according to Dworkin, only makes sense if the rule of
recognition identifies the law by criteria of pedigree. If the rule of recognition said something
like "all those rules which are just are legal rules", it would provide no greater certainty than do
our differing views of justice. Legal principles are not identified by their pedigree in that it is not
necessary that a principle should have been laid down in a statute or a case. In his own words :
"... a principle is a principle of law if it figures in the soundest theory of law that can be provided
as a justification for the explicit substantive and institutional rules of the jurisdiction in
question".
By this Dworkin means that the judge who formulates a legal principle for the first time does so
as an existing part of the law and not as a legislative innovation of his own. In general, principles
are identified by showing that they are embedded in the established rules and decisions, in the
sense that the principle provides a suitable justification for the black-letter rules. Dworkin
describes a hypothetical judge, called Hercules who, while deciding a hard case begins by
constructing a theory of law applicable to his jurisdiction. This theory of law will consist of an
elaborate moral and political justification of the legal rules and institutions of the jurisdiction.
Thus while dealing with settled rules about, for example, legislative supremacy, Hercules will
need to work out a body of principles that will justify these rules. He must ask, "what moral
principles would serve to justify the doctrine of legislative supremacy". This will inevitably
require an elaborate consideration of the moral and political theory that seems to form the basis
of the rules about legislative supremacy. Now, the criterion that, according to Dworkin,
distinguishes a legal from a non-legal principle is that a principle can be a legal principle if it
forms a part of the theory of law that can be offered as a justification for the established legal
rules and institutions. Dworkin says that constructing such a theory is inevitably a controversial
matter involving complex issues of moral and political theory. But it differs fundamentally from
the process of identifying laws by reference to their sources as envisaged by Hart. According to
Hart's theory, we identify valid rules by reference to the basic rules of recognition, but the basic
rule of recognition is identified by reference to the empirical facts of official behaviour. In this
way, the content of the law can be established by a purely empirical inquiry, without asking any
controversial moral questions. But this assumes that a judge, called upon to apply a rule by
reference to the rule of recognition, will apply the rules accepted by his fellow judges. This is
fundamentally different from the position of Hercules who must decide for himself which body
of principles provides the best justification for the established laws. This is broadly the position
that Dworkin takes against Hart's rule of recognition.
It is felt, however, that the Dworkinian assertion about positivists holding that law must be
identified by tests of pedigree only rests on a rather narrow reading of Hart's theory. Hart, while
talking about a rule of recognition conclusively validating legal rules, deals specifically with the
hypothetical transformation of a "pre-legal" community into one having a legal system. He says
that the introduction of a rule of recognition provides a public test for identifying primary rules
of obligation which earlier existed only by general acceptance, and thus eliminates uncertainty
about them. Hart's language emphasizes the elimination of uncertainty and nowhere does he
suggest that the tests employed by officials must be logically conclusive. It is submitted that
Dworkin's claim that positivists are preoccupied with the pedigree and are consequently blind to
tests of rules based on content may be true of Austin, but it does not appear true of Hart. Hart
holds that it is not necessary that a rule must satisfy particular moral standards to be a legally
valid rule; but does the fact that qualification by virtue of "content" need not occur mean that it
cannot occur? Let us take an example from the Indian legal system where judges determine the
validity of enacted rules by considering their compatibility with the provisions of the
Constitution. The Constitution requires interpretation, and some of its parts, for example,
Articles 14, 19 and 21 are understood in moral terms also, such as fairness, reasonableness and
equality. It is standard practice for officials (judges) to engage in moral reasoning when
interpreting these provisions and thus determining what is to count as law. This reasoning
involves the sensitive matter of identification and weighing of diverse considerations. But is it
incompatible with Hart's theory of the rule of recognition? I feel that it is not so. Of course, the
rule of recognition, being a touchstone for the validity of legal rules, does not dictate or control
their "content". At the same time, however, it does not eliminate the scope for applying tests that
are not tests solely of pedigree. It is reiterated that just because qualification by virtue of
"content" need not occur in Hart's theory, it does not necessarily entail that such qualification
cannot occur or does not occur when the judges engage in moral reasoning.
Now if we turn our attention on the doctrine of judicial discretion. Dworkin seems to suggest not
only that principles eliminate some indeterminacies in the law but also that they eliminate all
indeterminacies, for he rejects entirely the idea of judicial discretion. He appears to assume that
anyone who accepts the idea of judicial discretion cannot acknowledge the existence of legal
principles at all, or must hold that principles cannot eliminate uncertainties because they are to be
weighed against each other. But can his conclusion that principles eliminate all indeterminacies
be validly drawn? The author feels that the answer can only be in the negative. In order to
eliminate all indeterminacies in the law, principles must cover all cases that might arise. Further,
they must have determinable weights. Thirdly, the balancing process in which principles are
weighed against each other must never yield an equal weight to conflicting principles on either
side of a legal question. It is only when all these conditions are satisfied that we can countenance
the total rejection of judicial discretion. There is no reason why one cannot acknowledge the
existence of legal principles without believing that such principles eliminate all indeterminacies
and with them any occasion for the exercise of judicial discretion.
One last point about Dworkin's critique of positivism: let us suppose that his judge Hercules is
faced with a hard case on contract. Now let us further suppose that there are many well-
established rules relating to consideration in contract: somewhat like the Indian law on contracts
according to which promises are not binding, except in some exceptional cases, unless supported
by consideration. Hercules will now have to construct a theory of contract i.e. a justification for
the established rules of contract law, giving an account of the conception of justice on which (in
Hercules's opinion) contract law is based. Now let us further assume that Hercules holds the
personal, "moral" viewpoint that all promises must be held to be binding, regardless of
consideration. That no one should be allowed to dishonour a promise only because such a
promise was not supported by consideration. But can Hercules's theory treat as mistakes all legal
rules stipulating that promises are not binding without a consideration? The answer again, can
only be in the negative, for according to Dworkin, Hercules's theory will have to provide a
justification for existing black-letter rules. He may perhaps treat a couple of them as mistakes but
he cannot reject the entire body of rules, and therefore he will have to link the binding nature of
contracts to the existence of consideration. Now, is there then not a difference between
Hercules's view of what morality requires and of what the law requires? Does it not follow that
the Dworkinian theory is perfectly consistent with the "separation of law and morals" or the
distinction between what the law "is" and what it "ought to be", as asserted by positivists?
What has been pointed out by the author does create problems for Dworkin, but it does not lead
to the conclusion drawn by him, namely that the Dworkinian theory is consistent with the
"separation of law and morals". The point of divide between Dworkin and positivists is whether
there are any necessary connections between law and morals viz. whether law can be law if it is
immoral or amoral. What the learned author has pointed out, and which creates serious problems
for Dworkin, is that it may be hard for Hercules to determine what is law in a given situation
because there may be a plurality of views as to what the moral answer is in that situation. This is
so since according to Dworkin law is law only if it is morally legitimate but if there are many
moral answersand some directly at odds with each other, how are we to know what is morally
legitimate (and hence law)? But this does not make Dworkin a positivist. What has been pointed
out by the author raises non-trivial philosophical issues that Dworkin must face since he must
take a stand on the ontological nature of moral truth; and it would seem that Dworkin's theory of
what is law can only work if moral truth is objective. But the ontological nature of moral truth is
(one of) the most spiritedly disputed and unsettled issues in philosophy.

The Hart-Dworkin debate taking Raz with them on the judicial role during adjudication, which
boils down to almost same point that judges used to declare law with a little discretion in the
legal world itself during hard cases. However, when I have move to the real life situation in
terms of case law I found that it is not always possible to declare law. Therefore, there is a need
for a midway to define the judge's role. I am concluding this paper by saying that judges used to
declare law by making it while discovering it within the domain of legal world.