Do judges create law?

Hi, i'm a bit stuck with a written assessment.

could someone please point me in the right direction to find an argument which supports the idea that judges do not create law?

i've been brain dead on this for 2 days, lol

thank you!

I'd look for articles or books that discuss Kleinwort Benson v Lincoln City Council.

Literal approach?

Thanks! i'll look into that now =)




of statutory interpretation? I dont think that would be a strong enough argument to say that judges do not create law but thanks!

Stare decisis? Binding precedent?
Court hierarchy?

I wouldn't have thought those could be used in an argument to suggest judges do not create law..? If anything, it shows that they do

I think I might just play on the fact that flexible interpretation of statue (mischief rule, etc) might come across as judges creating law..

It's pretty clear judges do create law so.. to find an argument to suggest otherwise is hard hahah

Thanks though

How would stare decisis be evidence of judges creating law?

Because stare decisis is the doctrine of precedent, following the decisions of previous cases which is part of the common law, and judge made law, which shows judges make law?

Or am I being really dumb?

You're not being dumb. You're just not expressing yourself very well.

Your starting point would be a glance at Kleinwort Benson. This case isn't exactly a gripping read, but you may also wish to read something on the Rule of Law and/or the English Legal System.

If you've only been studying Law for six weeks, at what level are you studying? If this is only an equivalent of GCSE level then reading a case would be a bit of an overkill.

I thought it was parliament that creates law?

Judges create laws interpretatively in an executive, "final deal" kind of way, but they're bound by the code of law, and they can be charged.

A judge has the power to waive certain aspects but are limited to a case-by-case approach. This is why being a judge is a very serious affair.

As for the question, "can judges create law from example?", the answer is yes. Because they are not only citizens who are capable of protest, they can protest executively. A lobby of judges can start legislating indirectly if they are vocal enough.

It's all about populism.

They make statute, yeah!

You seem to miss the point entirely.

You seem to miss the point entirely.



OP, you have the case and directions on which literature to read. I think it is probably best to go about reading the materials, as people are now jumping in not really understanding the question at all. As you're a new entrant to law, you don't want to be left more confused by taking on board the advice of people who are even more confused than you.

The question was, do judges create law.

The answer is yes, indirectly, via example.