Whether Judges make Law or Not? Amaresh Patel BASICS OF LAW Wed, Feb 03, 2021, at ,03:12 PM Main supporters of declaratory theory are Hale, Blackstone and carter. According to this theory judges only declare law; no new law is created by the judges. Their province is to ascertain and declare what the law is. They only discover the existing laws, the particular principles that govern the individual cases. Through their interpretations they give a new shape to the existing law.According to Historical Jurists, judges are no more than the discoverers of law. They discover the law on a particular points and declare it. Coke’s view is that judicial decisions are not source of law but are the best proof of what the law is.Mathew Hale wrote that “the decisions of courts of justice…. Do not make a law properly so called, for that the Kind and the Parliament can do, yet they have a great weight and authority in expounding, declaring and publishing what the law of the kingdom is”. According to Blackstone, “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 dicere et non jus dare”.Dr. Carter, a great American jurist says that, “the judge were the discoverers and not the makers of the law”. He further says, “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 existing of law would be an indefeasible outrage”.Lord Esher says, “There is, in fact, no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable”.Though the view that ‘the judges only declare law and do not make it” has been supported by so many jurists and judges, it has its criticism also. Bentham and Austin both criticized it. Bentham characterized the declaratory theory as a willful falsehood having for its object of stealing of legislative power by those who could not openly claim it. Austin characterized it as the childish fiction employed by our judges that judiciary law is not made y them, but is a miraculous something made by nobody existing from eternity and merely declared from time to time by the judges.The Original Law-making TheoryThe theory that judges are law-makers find powerful support in Lord Bacon, Dicey, and Salmond. According to them judges make law in the sense of creating an entirely new law.Lord Bacon said that the points which the judges decide in cases of first impression are “distinct contribution to the existing law”. Dicey observes, “As all lawyers are aware, a large part and, as may would add, the best part of the law of England is judge made law that is to say, consists of rules to be collected from the judgments of the courts. This portion of the law has not been created by Act of Parliament and is not recorded in the statute book. It is the work of the courts; it is recorded in the reports; it is, in short, the fruit of judicial legislation”. Salmond is also strong supporter of the view that judges make law. He says, “we must admit openly that precedents make law as well as declare it. Original precedents are the outcome of the intentional exercise by the courts of their privilege of developing the law at the same time that they administer it”.In modern times, it has been stated by jurist and judges also that judges make law.There is no doubt that judge do make law. But is not mean that judges make the law in the sense in which a legislature make law. The law-making power of a legislature is absolutely different from the law-making power of judges. Judges are guided by certain principles, conventions and ideals. What the judges are guided by certain principles, conventions and ideals. What the judges primarily do is that they declare existing law but by means of interpretations judges do give new shape to an existing law which is no less than making law. It can be stated that judges not only declare law but also make law, but their’s making of law is absolutely different from legislature. It is necessary to bear in mind that the judge’s law making power is strictly limited. For instance, the judges cannot overrule a statute. They are bound to enforce them, however, unpleasant consequences may accrue. It is the business of the legislature to deal with such unforeseen results. Authoritative precedents also limit the law-making power of the judge for, he cannot depart from the established line of authority. Further, the judge’s legislative power is restricted to the facts of the case before him. Any ruling which he may lay down will be law only in so far as it is necessary for the decision of the case. The judge is confined to the fact of the case in enunciating legal principles. Within such limits alone can it be said that judges make law.Whether judges ‘make’ or ‘declare’ law depends on the nature of the particular legal system. In common law countries like England the role of the judges has been greatly creative and there judge make law. But in countries where the law is codified it has been comparatively less creative and judges declare law. If the words ‘make’ and ‘declare’ are taken in a special sense, we find the difference in the degree only. ‘Declaring’ does not mean something mechanical, but it involves a creative and intelligent process by which the rules are applied to particular cases. In the same way, ‘making’ does not mean that they make in the sense in which legislator makes the law. The judge simply work upon the material given to them by the legislator, or that comes from the recognized and valid sources. His function is interpretation only and while performing this function he plays a creative role. He adopts it to the changed conditions and causes its dynamic growth. By ‘making’ we mean this function of the judge. Allen says that judge makes law in the sense in which ‘a man who chops a tree to a log has in a sense made the logs’. There is difference in making of law by a legislator and by a judge. There are limitations on the ‘law making’ function of judge. He can exercise his function only when a case comes before him for hearing. He is to make law only within the material given by a statute or a rule having such authority. Thus, judges develop the law by extending the old principles to cover new cases by means of analogies and interpretation.