Why Judges should or should not make laws?
Judges do not make law – they interpret and apply existing law.If they are applying statute law there are well recognised rules of interpretation & construction designed specifically to discern the intention of the legislature in enacting the statute in question.Likewise if they are applying common law there are well understood rules of precedent which determine how to recognise and apply a prior binding precedent.Then there are cases of “first impression” where the facts are unique and there are no relevant statutes or relevant precedents and where a judge is free to determine the case on general principles or for want of a better word “fairness” between the parties. These rare cases are the closest Judges come to making new law but then if there is no pre-existing law what else are they going to do ? The argument that Judges should not make law is sometimes made when a decision is politically unpopular but then the legislature is able and often minded to legislate to reverse these de
