This traditional view expanded by Hale and Blackstone maintained that the judges only discover law, inasmuch as it is merely declaratory of existing law.
According to Hale,
“It is true the decisions of courts of justice, though by virtue of the laws of this realm they do bind as a law between the parties there to, as to the particular case in question, till reversed by error or attaint, yet they do not make a law properly so called; for that only the King and Parliament can do; yet they have a great weight and authority in expounding, declaring and publishing what the law of this kingdom is especially when such decisions show a consonance and congruity with resolutions and decisions of former times.”
To the same effect are the observations of Blackstone when he says,
“A judge is sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and explain the old one- -jus dicer non jus dare.”
The above view is in consonance with the old theory that Common Law of England is customary law and not case law.
The opposite-view was taken by Bentham and Austin who ridicule the traditional concept that judges only discover law and maintained that they are in fact law-makers, fulfilling a function similar to that of the legislator.
Bentham characterised the orthodox declaratory theory as a willful falsehood having for its object of stealing of legislative power by those who could not openly claim it. Austin characterised it as the childish fiction employed by our judges that judiciary law is not made by them, but is a miraculous something made by nobody, existing from eternity and merely declared from time to time by the judges.
The theory that judges are law-makers, finds powerful support in Prof. Dicey and Prof. Gray. According to the former, a large party and the best part of- the law of England is judge-made law-that is to say, consists of rules to be collected from the judgments of the courts.
This portion of the law has not been created by Act of Parliament and is not recorded in the statute book. It is the work of the courts; it is recorded in the Reports; it is, in short, the fruit of judicial legislation.
It will appear from a review of the above authorities that neither the purely declaratory theory nor the purely legislative theory that judges are law-makers represents the whole truth. The solution lies in between the two extremes. No court has power to lay down a binding rule of law on facts which are not before it. To discover whether a certain rule of law is binding in a subsequent case one must see if the facts are identical.
If they are not so identical, the first decision of the court is clearly not binding in the subsequent case. Salmond rightly says : “We must admit openly that precedents make law as well as declare it…Doubtless judges have many times altered the law while endeavoring in good faith to declare it. But we must recognize a distinct law-creating power vested in them and openly and lawfully exercised.”
There are several limitations placed on the power of the judges in expounding law. They do not enjoy an unrestricted power of laying down abstract principles of law.
They cannot, in the first place, override express provisions of an enactment. They are bound to enforce them, however unpleasant consequences may accrue. It is the business of the legislator to deal with such unforeseen results.
As observed by their Lordships of the Judicial Committee in the case of Thakur Jagmohan Baksh Singh v. The United Provinces (73 I.A. 123):
“No court can annul the enactment of a legislative body acting within legitimate scope of -its sovereign competency.”
In the second place, statutes may not only amend but reverse the rule, or those may introduce absolutely novel principles and remedies.
In the third place, the judge’s legislative power is restricted to the facts of the case before him. He cannot travel beyond them. The primary function of the judges is to decide a dispute between the parties to the case and any ruling will be law only in so far as it is necessary for the decision of that case.
Any other points of law lay down by him, which are not germane to the case before him, are obiter dicta and will not be binding on the judges in subsequent cases. In the fourth place, authoritative precedents also limit the law-making power of the judges for they cannot depart from the established line of authority.
And, lastly, even in these cases where application of the correct rule of law is uncertain, judges develop the law, as observed by Cardozo, along the line of logical progression, historical development, customs of the community or justice, equity and good conscience.
In conclusion it may be added that judges develop the law by extending the old principle to cover new cases by means of analogies and interpretation.
They do not make law or legislate in the sense of introducing an absolutely new principle of law. Their power in this respect is different from that of a legislator who not only legislates in the real sense of the term but has also power to abrogate existing law.