Updated: Feb 26, 2020
The Common Law is generally uncodified with no comprehensive compilation of Legal Rules and Statutes. Though the Common Law does rely on some scattered Statutes, which are legislative decisions, it is largely based on ‘Precedent’, meaning the judicial decisions that have already been made in similar cases.
The ‘precedents’ to be applied in the decision of each new case are determined by the presiding judge. As a result, judges have an enormous role in shaping American and British law.
Bernard Rudden has noted that the main creator of the Common Law is the Judiciary. However, in Civil Law Systems (codified), at least until very recently, judges played the comparatively minor role of settling the dispute in front of them. In countries of the Civil Law group, these three areas of status, assets, and business may be dealt with in separate codes of Family Law, Civil Law (using the word in a narrower sense) and Commercial Law.
Doctrine of precedent
In the Common Law world the basic system is laid down by case law, although there are many modern Statutes which often re-state and systematize the work of the judges. The ‘doctrine of precedent’ is an operating rule of a Common Law System so the rule itself was never laid down by a legislator. It is a judicial creation and can be amended or adapted by its makers.
In England, for instance, the highest court (the House of Lords) held in the 19th century that it was bound by the law laid down in its own prior decisions and in the 1960 it amended rule, and gave notice that it was now free, to change its mind. Lower Courts, however, are bound by the highest Court’s rulings on matters of law.
Speaking on the role of the judges, President Roosevelt of the United States, said: “The chief law- makers in our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret contract, property, vested rights, due process or law, liberty, they necessarily enact into law parts of the system of social philosophy; and as such interpretation is fundamental, they give direction to all law making.
The decisions of the courts on economic and social questions depend upon their economic and social philosophy; and for the peaceful progress of our people during the twentieth century, we shall owe most to those judges who hold to a twentieth century economic and social philosophy and not to a long outgrown philosophy which was itself the product of primitive economic conditions.”
A.V Dicey's View
Prof. A. V. Dicey was of the view that the Courts must act as judges, not as arbitrators, and that the duty of a Court is to follow ‘Precedents’ though to a limited extent is admitted in all civilised countries have obtained more complete acceptance in England than in any Continent, and perhaps in any other existing, State. According to Dicey, the judge made law is real law, though made under the form of, and often described, by judges no less than by jurists, as the mere interpretation of law.
There are, however, certain limitations of the Judges/ Courts:
(a) It cannot openly declare a new principle of law: it must always take the form of a deduction from some legal principle whereof the validity is admitted, or of the application or interpretation of some statutory enactment
(b) It cannot override Statute Law
(c) the Courts may, by a process of interpretation, indirectly limit or possibly extend the operation of a Statute, but they cannot set a Statute aside.
It cannot, by its very nature, override any established principle of judge- made law. A superior Court may, of course, overrule any principle of law that derives its authority merely from the decisions of an inferior Court.
Hart accepts that in ‘hard cases’ judges make law since in arriving at decisions, judges have a fairly wide discretion by virtue of the rule of recognition: if there is some ‘acid test’ by which judges are to able to decide what are the valid legal rules, then where there is no applicable legal rule or the rule or rules are uncertain or ambiguous, the judge must have a strong discretion to ‘fill in the gaps’ in such ‘hard cases.’
Judges are nonetheless guided by various sources but ultimately they base their decision on subjective conceptions of fairness and justice. Sometimes there is no source (rule or precedent) to guide the judge and he/she must use strong discretion and legislate.
According to T. R.S. Allan, Rule of Law purports to be a principle implicit in all Common Law Legal System that judges may invoke to strike down government, and even legislative, action. Allan was of the view that the Rule of Law is a legal principle; a substantive legal rule which is, or should be, applied by Commonwealth Courts and to be understood through examination of case law.
On the other hand Tomkins is of view that the role of the Courts is merely to police the boundaries set by Parliament. Scrutiny of the rationality of Executive decision-making should be left to the Commons. Further, T. Poole claims that ‘judicial review’ by judges cannot legitimately replace political debate in legislatures as the principle forum for debates about policy.
Legislatures are better placed than courts to accommodate a wide range of different points of view and different interests. And, we could add, only legislatures can produce systematic solutions to social problems – the judicial process ordinarily only allows for slow, incremental, changes to the law.
However, here we will not go into debate whether judges are creators of law or not, but certainly they can play an important role in shaping law. In India, there are some classic examples where the judgments of the courts have resulted in to making of law. in ‘Vishaka Vs. State of Rajasthan’, the Supreme Court laid down guidelines and norms against sexual harassment at workplace and recognized sexual harassment as a violation of fundamental rights of women to equality.
The Court stressed that this should operate as a binding law upholding gender equality. In ‘Indira Swahney I’ and ‘Indira Swahney-II’ – In these two cases law was declared that caste alone could not be the basis for determining the socially and economically backward class.
The creamy layer of those who were advanced socially and economically would not come under backward class irrespective of their caste. In ‘Raj Narain vs State of UP’, the Supreme Court declared that people cannot speak or express themselves unless they know.
Therefore, right to information is embedded in article 19 and is a fundamental right. In ‘People’s Union for Civil Liberties (PUCL) & another vs. Union of India and another’ the Supreme Court held that securing information on the basic details concerning the candidates contesting for elections to the parliament or State Legislature promotes freedom of expression and therefore, the right to information forms an integral part of Article 19(1)(a).
This Right to Information is, however, qualitatively different from the right to get information about public affairs or the right to receive information through the Press and Electronic Media, though, to a certain extent, there may be overlapping.