This morning I received the following email:
"Dear Mr. John Bolch,
Hello, my name is Ng. I am currently pursuing a South Australian Matriculation Pre-university Programme in Taylor’s University College, Malaysia. I am doing a research regarding to the issue, “Should judges be allowed to make law?”
In the process of collecting materials to support my point where judges should be allowed to make law, I have come across your article “Judge-Made Law” posted on 3rd May 2007 in your blog, familylawsolicitor.blogspot.com.
Hence, I would kindly appreciate if you could state your opinion on the issue – “Should judges be allowed to make law?” clearly in your reply and provide valid reasons.
Thanks for your precious time."
Wow, one heck of an email to receive on a Sunday morning! The title of the post to which Ng refers was my little homage to law students, most of whom, it seems, are required to answer some version of this tricky question by sadistic law tutors. I may have over twenty years experience in the law, but I'm not sure that I'm qualified to provide an answer. Nevertheless, here goes.
The first thing I would say is that it seems to me that the question is academic (in both senses), particularly in any common-law based system: who but judges can 'fill the gaps' left by statute-based law?
I can understand the argument that all law should be made by the (democratically elected) government, but that can surely only ever be a pipe dream. It is utterly impossible for any government to create a complete system of law, covering every conceivable situation in every conceivable area. Inevitably, there will be gaps, either (more rarely now) where there is no statute law at all, or where the application of statute law to a given situation has to be interpreted. If judges don't fill these gaps what do we do, stop the court proceedings and refer the matter back to parliament?
The best-known example of the 'interpretation' gap in English family law is section 25 of the Matrimonial Causes Act, where the guidance given to courts deciding how to divide assets on divorce amounts to little more than a checklist of factors to be taken into account (this is what Jeremy Posnansky QC was referring to in the post mentioned above) - only in recent years have the courts 'imposed' a starting-point of equality. Here I have to agree that such a fundamental point should surely be determined by parliament, but parliament has thus far chosen not do so.
More learned lawyers than me will no doubt cringe at the answer I have given above. Nevertheless, I hope this helps you Ng, and good luck with your studies - just ask someone else next time!