Judge-Made Law

What is the nature of judge-made law?

Judge made law means that judges in interpreting the existing law may need to make a decision where there is no settled precedent and in doing so their decision becomes law. Some may consider that judge made law is against the rule of law because if judges are creating law they are not strictly applying the law. However what the rule of law really demands is that there is no uncontrolled use of power by the individual, groups or government. This means that judge made precedent is consistent with the rule of law because judges are only changing the law in an incremental manner


What is this kind of law that judges are creating? 2 aspects are interesting to note and to be addressed:

– the question whether judges when they render their decisions whether they discover or whether they create a rule of law. This question relates to the legitimacy of the judge-made law. Indeed judges aren’t elected so they shouldn’t have any legislative power if we accept the doctrine of the separation of powers.

A) Discovery or creation of the rule of law?

The declaratory theory

If we accept this doctrine we should ask ourselves what judges are doing to apply the rule of law that they are making?

The declaratory theory: doctrine in the 19th century. It means that when judges make decisions, they are merely declaring what the law is and what it has always been. Another way is to state that the decisions of the court are the evidence of law and not the rule of law by itself.

=> The declaratory theory means that the judges discover what the law is that they don’t make it.

Blackstone lived during the 18thcentury, he is famous because he wrote the commentaries of the laws of England in 1766. He was the first to write a treaty on English law, the first book to explain what law was at that time and his commentaries were used in the USA to explain the law there and these commentaries are still today sometimes important in the USA.

He is said that “the judge isn’t delegated to pronounce a new law, but to maintain and expound the old one”. The judges don’t pronounce the law but just say what it is.

He presupposed that the law exists before it is put into words but this theory explained, justified that judgment law is retrospective.

=> This theory helped in justify that there was no problem of legitimacy at all.

=> This theory helped to justify that the court decisions could apply even to facts occurred before the decision was given, rendered. They just declare what the law was.

DDHC => it’s the idea that judges are declaring and not making the law is the same conception that the revolutionary.


It might seem a little bit hypocrites to say such a thing. There is a creation; it was criticized in the 19th century by John Austin in the “childish fiction”. For this kind of jurist, it is obvious that judges are creating law and furthermore it’s a denial of responsibility for judges to deny that they are creating the law. They don’t recognize what they are doing. One of the most several critics comes from the judiciary.

Loid Reid => it’s a fiction.


The fact that judges are creating law is not so disturbing because the area of case law is contract law, tort law and property. These areas of law don’t really affect public interests. The issues which are affected by case law are issues which don’t generate public interest.

We should remind that in any case statute law may reverse judicial law, statute law may always abolish a decision by setting new rules which not coincide with decisions. New principle that other rules a judicial decision that means, what only decisions which parliament is reeling to tolerate will have long term existence. These nuances help to accept this declaratory theory and the fact that the judges are making the law.

B) Judge-made law operates retrospectively:


We usually not accept that in statutory law.

When the court declared what the law is there are also in the meantime declaring what it was at the time of the transactions or evens giving rise to the litigations in question. When the judges are saying, this is the rule of law that should be applied in that case, they are saying that this was the rule of law existed.

=>The law, as it is now declared to be, will affect all previous situations.

=>Difference with statutory law.

Provision at the end in the statute to say this statute will be applicable in a certain date, in the absence of such provisions, when the statute enters into force, it was the day of the Royal Assent. This is different of case law applies.

Ex 1: Kleinwort Benson Ltd v Lincoln City Council (1998)

In that case, parties, a financial institution and a local authority. The parties are entered into a financial agreement none as an interest rate swap agreement and when they entered into that agreement at that time to entering to that agreement it was lawful a city council could enter in that kind of agreement.

But in a previous decision, in a decision dating of 1991 the HL held that when entered into by local authorities such transactions weren’t lawful. In that decision, the legal issue was whether what was now seen to be a mistake of law was a good ground for allowing recovered of the money which had previously change hands.

The solution depended on whether courts will apply that decision to facts that occurred before this decision was rendered. The HL held that the contract was void and so ordered the restitution.

Ex 2: R v R (Rape : Marital Exemption) (1991)

Mister R had been charged with attempting to rape his wife and for his defends he argued on 2 different legal arguments.

English law didn’t recognize the possibility of a man raping his wife and so he couldn’t be an offense to attempt to rape her. He relied on 2 legal principles:

– Sir Matthew Hale’s statement 1736.

– Sexual Offences Act 1976.

He argued 2 things:

Previous case dating from 1736 said that a man cannot rape his wife, his wife has accepting to be married.

A rape is committing when he has unlawful intercourse. It’s a lawful intercourse so it’s not an offense.

He pleaded guilty. The judges weren’t convinced by these arguments. On appeal both the court of appeal and the HL held that the husband should be convicted. The HL changed the previous case but they justify themselves by saying that the modern view of marriage and of equality within marriage means that the old rule of 1736 has become offensive to the point where it can no longer be sustained.

This husband thought that it was lawful but by recognizes it wasn’t, the judges create a new liability. It’s a problem with some text that a new rule is apply to a fact that when that fact has committed the person didn’t know what the law was, it can creates problem with article 7 of European convention of Human Rights (ECHR). There is a strict principle which says that no one should be held guilty of any criminal offense an account of any act or omission with didn’t constitute a criminal offense at the time it was done. It’s an important principle.

The European Court of Human Rights which considered the case found no problem, no bridge of the convention because the defendant here could reasonably have foreseen that the law would be changed.

Some academics are thought that was where the retrospective effect could be avoiding it.

=> Proposition: prospective overruling. It’s just an idea that courts should not necessarily apply the new rule at the state in the case they are considering.

Rétroactivité des revirements de jurisprudence: propositions to try not that the decisions the new rule of law will not be immediately applicable but only in the future. It’s a proposition done in France but not in England.