Part 54. Guidance and control. Principles and rules (2)

It is said that in England judges do not make law. Law making is for the Crown in Parliament through legislation.  The judiciary is a mere interpreter of statutes and subordinate legislation. There are clear rules of statutory interpretation.

But what are we to make of the common law? After all,  it is not made by the legislature but exists in law reports over which Parliament has no authority. Legislation may be passed to overrule or amend the common law. The myth is that judges do not make the common law,  they merely interpret it.  This is nonsense intended to divert attention away from the ability of an unelected body of judges to make law. (The House of Lords in not an elected body but it cannot make laws in its own power.)  

A simple illustration of the myth. Regard the common law as a lump of potters clay. The clay may be made into all manner of shapes but it stays a lump of clay. No new clay has been created, it has simply been moulded into a new shape. The common law is shaped and moulded by the judiciary, but nothing new is created. The common law is being applied to the facts in cases, not being changed by novel judicial ideas.  Nonsense.

Instead of common law think Old and New Testaments.  Think of these as a lump of clay. How is this clay shaped and moulded? How is it applied to modern society? Who is responsible for determining the meaning of scripture and its application?  Who indeed?

To be continued......