Judges do create law in the process of adjudication, especially when there are no precedent, competing precedents, or ambiguous law, Such judicial creativity, however, leads to a potential conflict between the judiciary and the legislature, since judicial law-making overlaps with the legislature’s function to enact law. To strike a balance between these two branches, self-restraint among judges is crucial. Whenever judicial law-making is unavoidable, it must be done subject to strict restrictions. Both HK and UK cases will be used in this article to support the analysis.
Both Ronald Dworkin and William Blackstone denied the creative role of judges. Dworkin regards law as a “seamless web”: since legal principles deduced from precedents never run out, judges can simply apply them to the adjudicating case, and need not to use their discretion in making laws. Meanwhile, under Blackstone’s declaratory theory, judges do not make law but, by rule of precedents, discover and declare the law that always exists. To him, precedent offers no choice for judges to choose between different interpretations of law. These two notions, nevertheless, are flawed.
Dworkin has neglected the fact that legal principles do not ordinarily exist: every legal principle was created by judges at some times in history. Also, given the fast-paced development of society, there must be cases that law has never dealt with before they come before the court. Without the guidance of precedents, judges nevertheless have to make law.
Concerning Blackstone’s declaratory theory, it may be accurate in describing the role of judges wherever the existing law is clear and the facts of the adjudicating case fall squarely within the existing precedents. Nevertheless, a judge may encounter novel situations in which several precedents compete with each other. In this case, it is difficult to say that the judge can declare what is the law. He has to make a decision between these precedents and ultimately, creates a new law. Probably for this reason the declaratory theory is described as a fairy tale by Lord Reid, and deemed as largely impractical.
One may also argue that the doctrine of stare decisis requires judges not to create law. This doctrine, however, has two limitations. Firstly, the supreme court is not bound by precedents and even its own decisions. This renders space for its judges to create laws. Secondly, judges have a handful of techniques to avoid awkward precedents, such as distinguishing the facts or declaring a precedent as outdated.
To sum, judicial creativity does exist in adjudication of cases. While the declaratory theory is largely unrealistic, the realist theory, holding that law is judge-made, has higher applicability in certain aspects of law such as tort and equity. In UK, for example, the development of negligence as tort is largely directed by judges. Indeed, the creative role of judges is best reflected by their interpretation of law.
Judges: Usurpers of the Legislature’s Function?
In HK, the role of judges to interpret law is well-protected by the BL. By exercising such interpretative power, it might be said that the judges are merely saying what law the legislature has made. But, as Lord Radcliffe acknowledges, interpretation itself is “a creative activity”. Lord Diplock shares similar view and regards interpretation as a form of legislation. While legislation is the primary function of the legislature, “judicial legislation” means usurpation of legislature’s function by the judiciary. This results in the emergence of two independent law-making sources, as recognized by Lord Radcliffe himself.
Chan Pun Chung v. HKSAR can be used to illustrate how “judicial legislation” operates. In this case, the accused were convicted of common law conspiracy under s.159A of the Crime Ordinance. But since the offence under s.159A was “abolished” by another provision in the same ordinance –...