'Judges do not make law - they only declare it' Discuss.

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Understanding Law (LLB) Assessed Coursework

2001-2002

'Judges do not make law - they only declare it'

Discuss

Illustrate your answer with reference to at least TWO of the following:

(i) R v R;

(ii) "The Case of the Speluncean Explorers" (Fuller, 1949);

(iii) Ronald Dworkin's concept of law;

(iv) The Pinochet case;

(v) Lord Steyn's judgment in R v A (No 2);

(vi) Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston

The function of a judge in any legal system remains a true phenomenon even today. Barristers, solicitors, law students and the general public often question the precise role of a judge - puzzled over whether judges are authoritarian law-makers, or if their profession makes them mere declarers or announcers of the law. Various valid opposing arguments exist in this on-going debate; authors, solicitors, professors, and prominent legal thinkers from earlier centuries have, on many occasions, stated their own views ensuring that either end of the argument is just as plausible as the other. In this essay I will consider a number of examples and cases which suggest that the statement is in fact valid. I