Judge made law

Debate whether judges make new laws & whether they should have the power to do so.

Judges are able to make new laws thanks to the common law system. The common law is a system of law in which the courts decision forms a binding statement and represents how statutory law is represented. The system is heavily based on the idea of “precedent” or “case law”, that is, judgments from previous cases constitutes a source of legal and therefore binding rules. As time passes and new cases are brought to court, judges are thus in a position to not only interpret the law to suit the situation but also refer to previous similar cases for judgments so as to come to a ruling.

Although this means that courts should base decisions of current cases based on previous decisions of similar cases, there may still be a situation in which no similar case has ever been brought up before (Chisholm and Nettheim, 2002). A judge would then be required to interpret any available statute and then make a judgment. His judgment would then be the precedent for similar cases that might come in future. In effect, his judgment constitutes a new legal rule.

In the case of Mabo and Others v. Queensland (No. 2) (1992) 175 CLR, the judges decided that the Meriam people, who were here before the English settlement in Australia had native title over the disputed land and rejected the notion of terra nullias. The judgment gave the Racial Discrimination Act 1975 a proper standing in the Mabo case. As a result, the Native Title Act of 1993 was passed. In this instance, we can see how the judges threw out a long held legal view that contradicted with the Racial Discrimination Act 1975 and finally culminated in the making new laws.

Should judges be given the power to make new laws in accordance with their rulings? In my opinion, the power of interpreting laws should still be left to the judges. There are many instances where statutory law is so ambiguous that the right interpretation by a learned authority is imperative to solve disputes or effect public and private sanctions. Furthermore, the system of common law allows for situations where the law is ambiguous be met with precedent so that future cases can be resolved in the same manner as previous similar cases.

Judges therefore, do make new laws and we have seen how the system has worked so far and justice served for all. Each case in the court needs to be heard on its own merits. This is where judges are put on the spot and will have to be discerning as every case is different and every outcome should be relevant to the case. More importantly, the ruling on each case constitutes a binding legal rule that is applicable to all future similar cases.

In conclusion, I agree that the role of a judge is to interpret laws, but in the process they make relevant laws and judgement to individual cases heard. This is particularly important to accommodate the constantly evolving common law in regards to the current era.




Reference List

CHISHOLM, R. & NETTHEIM, G. (2002) Understanding Law Australia, LexisNexis.

WARD, I. & STEWART, R. G. (2006) Politics One, Australia, Palgrave Macmillan.