To the laymen, the role of a judge in the process of adjudication is simply to interpret

and apply the laws to court cases. In reality, however, judges often take up a creative
role as well, that is, they can modify, shape or even form laws. This essay will first
explain how judges create laws under the common law system, followed by an
analysis of how this may come into conflict with the powers of the legislative branch.
Finally, I hope to suggest the criteria in which a balance between the two branches can
be struck.
The creative role of judges
The limitations of the doctrine of binding precedent allow the room for judicial
creativity. The doctrine suggests that a lower court is bound to abide by the legal
principles that were established in previous cases with similar material facts and
issued by a higher court in order to stand by things decided (stare decisis).
However, this principle is not always applied in reality due to the following
limitations.
First, judges sometimes face the situation in which there is no precedent to rely on.
When this happens, they formulate new precedents using their own discretion. For
example, they may consider precedents from other countries. When the decision is
made, it becomes precedential, showing the creative role of judges in the process of
adjudication.
Even in situations with a binding precedent, judges do not always follow them. For
example, they can justify their judgment by distinguishing the material facts between
the case and the precedent; arguing that the precedent is outdated and is not in line
with modern thinking1; arguing that the precedent has no obvious ratio decidenti and
etc.2 Having established that there is a noticeable difference between the precedent
and the case, they can then create a new ratio decidenti, which becomes precedential
itself. In this way, judges become a part of the lawmaking process.
Statutory interpretation is another way in which judges take part in the lawmaking
procedure. Due to different reasons such as vagueness in language or technological
1

In R v R (1999), for instance, the House of Lords of the United Kingdom overturned the law which
stated that rape inside marriage is not a crime.
2

In the book English Legal System, Elliot & Quinn list out the common ways in which judges avoid
awkward precedents. Other than what have been mentioned, they suggest that judges can refuse to
apply precedents by distinguishing the point of law between the precedent and the present case,
arguing that those parts of the judgment which seem to apply to their case are not the ratio, and are
only obiter dicta, claiming that the precedent is inconsistent with a later decision of a higher court,
and had been overruled by implication and stating that the previous decision was made per
incuriam.

advances, statues are sometimes interpreted by the court. The role of the judges is to
ascertain the intention of the statues but in situations where there are not enough
intrinsic or extrinsic materials for judges to rely on, they may need to assign meanings
to ambiguous phrases. In such a case, judges are usually taking the mischief rule or
the modern purposive approach. The interpretation, once made, becomes a new
precedent, and all lower courts are required to adopt it in future cases. As such,
through statutory interpretation, judges influence and shape laws directly.
Conflicts with the powers of the Legislature
Judicial lawmaking, however, has been criticized by many. These critics, including
Lord Radcliffe, are usually supporters of the Declaratory Theory who believe that the
role of judges is not to make laws (as this overlaps the powers of the Legislature) but
to discover and declare laws only. In other words, they think that adjudication should
be a process of mere research and identification, and not creation.
Indeed, when judges take up a creative role in lawmaking, it represents a conflict in
terms of power between the Judiciary and the Legislature. In general, the primary
function of the Judiciary is to apply and interpret laws correctly in court cases so as to
uphold the law whereas that of the Legislature is to enact, amend or repeal laws. Such
separation of powers ensures checks and balances among the branches, making sure
that each is working independently. Thus, when judges carry out a creative role in the
process of adjudication, some see it as an encroachment to the powers of the
Legislature, undermining the doctrine of the separation of powers as a whole.
More importantly, critics question the source of authority for judges to make laws.
Legislators are granted the power to do so because they are elected by the people (at
least in most situations) and so represent the opinions of their voters. Yet, judges are
unelected, indicating that they only reflect their personal views when making laws.
Hence, some see that judges are disregarding the important function of legislators
being representatives of the public when they make laws.
Secondly, critics believe that laws should be formed through a series of debates and
discussions in the Parliament or the Legislative Council rather than an adjudication
given by a judge. This is because a policy which is acceptable to more people can be
generated that way. Through the debates in the Parliament, contrasting opinions may
be expressed and compromises are easier to be made. On pragmatic grounds, it is also
easier to predict the impacts of the laws made by the Legislature because they carry

out an in-depth study of the bills before they are passed, for instance, legislators
calculate the cost of the bills. This is contrasted with how judges create new
precedents alone in the lawmaking process by the Judiciary. Therefore, if judges, too,
can make laws, it seems to suggest that the present complex procedures practiced by
the Legislature in lawmaking are unnecessary.
A Hong Kong case which highlights how judicial creativity may come into conflict
with the powers of the Legislature is Director of Immigration v. Chong Fung-yuen. In
that case, the Court of Final Appeal ruled that children of Mainland parents born in
Hong Kong are entitled the right of abode. However, this precedent is unwelcomed by
the majority of Hong Kong citizens as it allows Mainland mothers to extract local
resources, so much so that some legislators are now considering to propose a bill to
prohibit Mainland mothers from coming to Hong Kong to give birth to their kids. This
indicates that precedents created by judges are sometimes in conflict with the function
of the Legislature which is to make laws based on popular opinions.
Striking a Balance
"We do not believe in fairy tales any more, so we must accept the fact that for better
or worse judges do make law." Lord Reid
Indeed, judicial lawmaking is an inevitable reality. The sensible thing to do, therefore,
is not to oppose judges from shaping the law but to strike a balance between the
lawmaking by the Legislature and the Judiciary.
First, judges should endeavor to respect opinions from the Legislature when making
laws because legislators are representative of and accountable to the people. This,
however, does not mean they should react slavishly to popular opinions. The court
should only take into account opinions that are constitutional and legally sound, for
the Legislature is sometimes nothing more than a tyranny of the majority.
As a general principle, judges should refrain from making laws that concern a highly
controversial issue. Lord Devlin called this dynamic lawmaking, and he discouraged
judges participation in it because it jeopardized the courts image as an impartial
body. However, as aforementioned, if certain minority groups are denied of their
constitutional rights owing to this controversial issue, the court may still need to make
laws to protect them.3 The fact that much controversy has been aroused after the court
3

When two constitutional rights are in conflict, the court should take the necessity test to see which
right is relatively more necessary.

denied the right to marriage to Ms. W in W v Registrar of Marriages highlighted the

importance of this.