Are Judges the Makers or Discoverers of the Law?: Theories of Adjudication and Stare Decisis with

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Are Judges the Makers or Discoverers of the Law?:
Theories of Adjudication and Stare Decisis with
Special Reference to Case Law in Pakistan

I. Introduction

THE debate about whether judges make or create the law is at the centre of any discussion about stare decisis. Modern authors1 have discussed the views of judges and jurists in the past. This work focuses on some of the notable judges and jurists of the twentieth century, such as Lord Denning, Lord Reid, Lord Devlin, Bodenheimer, Hart, Dworkin, from the Anglo–American legal systems. The views of the latter three jurists are very complicated and need particular attention. It is also pertinent to note that no one has explored the views of leading judges and jurists in Pakistan to know which theory of adjudication they support. This work analyses some of the prominent decisions given by some of the notable Pakistani judges



muhammadmunir@iiu.edu.pk. Dr. Muhammad Munir, PhD is Associate Professor and Chairman Department of Law at the Faculty of Shari„ah & Law, International Islamic University, Islamabad and Visiting Professor at the University College of Islamabad. He wishes to thank Professor Imran A. K. Nyazee and Salman Farooq for their comments on this article. He remains responsible for the views expressed and any errors.

1
Edgar Bodenheimer, Jurisprudence: The Philosophy and Method of the Law, (Cambridge: Harvard University Press, 1974), at 439–43; Peter Wesely-Smith, „Theories of Adjudication and the Status of Stare Decisis‟, in L. Goldstein (ed), Precedent in Law, (Oxford: Clarendon Press, 1987), repr. 1991, 73–87.

Electronic
Electronic copy available at: http://ssrn.com/abstract=1792413

such as Justice Munir, Justice Cornellius, Justice Hamoodur Rahman, Justice Saleem Akhtar, Justice Wajihuddin Ahmad and others. Moreover, it discusses whether the declaratory theory or positivism can justify the binding effect of precedent. It is argued that judicial decisions may be accorded great weight in certain categories. However, granting them absolute authority is incompatible with both theories of adjudication.

II. Theories of Adjudication

Precedent2 is treated as a general and formal source of law in the Anglo –American and the Indo–Pak Legal systems. This view is shared by lawyers, law teachers, law students and judges alike. The prevailing opinion of all those persons who deal with law in one way or the other in the Indo–Pak sub-continent or in the Anglo–American legal world is that a decision of a court of law, especially a court of last resort which explicitly or implicitly lays down a legal proposition, constitutes a source of law. The importance of precedent can be gauged merely by the fact that almost all authors from the above-mentioned regions treat precedent as a source of law. The above view may be undisputed in our own times but historically and jurisprudentially, it has always been disputed. Ascribing authoritative force to a precedent is to some extent grounded on the assumption that court decisions are a source of law and that judges are entitled to make law in much the same sense as the legislator. The role of the judge in the process of adjudication as a law maker is the subject of disagreement and debate. Many famous jurists, among them Bacon, Hale, and Blackstone, were convinced that the office of the judge was only to declare and interpret the law, but not to make it.

2

It may be defined as the practice whereby decisions of the higher courts are binding on the lower courts.

Electronic
Electronic copy available at: http://ssrn.com/abstract=1792413

At the other end of the spectrum equally great jurists as well as judges such as Bentham, Austin, Salmond, and Lord Dennining held the opposite view; that judges make the law (the creative theory). Thus, there seems to be two theories of the judicial process–declaratory and creative, respectively.

Sir Matthew Hale, a famous seventeenth century judge and probably the...
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