Do Judges Make the Law or Find it

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An older dimension of the ideology that judges do not make law is captured in saying that judges find or declare law but do not make it.2 The question of whether judges make law or find and the arguments relating to this question is hinged on the roles of the three major organs of the government. the executive, judiciary, and legislature. It is argued that the legislative branch of the government has the mandate of creating the law.3 Nonetheless, it is true that the executive branch can make the law through executive orders which operate as law, and so can the judiciary branch make the law. While it is generally known that the judiciary is mandated to interpret law, it has over the years asserted its authority and has established itself as an equal branch of the government that can make law.4 Case law is a common example of the law that is created by the court system or the judiciary. Case law can be defined as the sum of body of cases that creates a body of law or jurisprudence on a certain subject distinct from legislations and other sources of law. Case laws interpret regulations, constitutional provisions, and statutes. Strasbourg jurisprudence recognized the powers of the courts to make laws.5 In R v Governor of HMP Brockhill Ex parte Evans (2000), it was held that even in the criminal law, the domestic courts can develop law through judicial interpretation of a case or more.6 So, are judges really law makers or are merely law finders? The fact that the main role of the judges is to interpret and apply existing law in a particular case is undisputable. Therefore, judges are supposed to find any existing law that is relevant to a case at hand and apply it to make legal decisions. In this case it can be said that judges are law finders rather than being law makers because they have to find law.7 The doctrine of separation of powers stipulates that each branch of the government should not interfere with the mandate and roles of the other branch and each branch should be allowed to operate independently. In this respect, the court system should interfere with the legislature’s role of making the law.8 Instead, it should preoccupy itself with the role of interpreting the law. However, it is an appreciated fact within the legal fraternity that the legal system is dynamic and keeps on developing and so does the role of the judges. As such, it is expected that the role of the judges should not be confined only to finding laws and applying them, but rather to make law where necessary and leave their own legal imprint in the legal system.9 In common law countries, the case law left behind by the judges is used in applying to other cases that relate to the previous ones based on the doctrine of judicial precedent. It has been argued to a greater extent that the doctrine of judicial precedent is an indirect way in which judges make law.10 In common law countries and democratic states, the role of judges is perceived to be active and creative rather than passive. This explains why they have a special place in the judiciary branch of government. Apart from being expected to interpret the law, they are also expected to contribute towards the growth of the legal system of their countries through their knowledge, skills, experience, and creativity.11 Whereas the