Are Judges the Makers or Discoverers of the Law?
The views of the latter three jurists are very complicated and need particular attention. It is also pertinent to note that no one has explored the views of leading judges and jurists in Pakistan to know which theory of adjudication they support. This work analyses some of the prominent decisions given by some of the notable Pakistani judges ? [email protected] edu. pk. Dr. Muhammad Munir, PhD is Associate Professor and Chairman Department of Law at the Faculty of Shari„ah & Law, International Islamic University, Islamabad and Visiting Professor at the University College of Islamabad.
This view is shared by lawyers, law teachers, law students and judges alike. The prevailing opinion of all those persons who deal with law in one way or the other in the Indo–Pak sub-continent or in the Anglo–American legal world is that a decision of a court of law, especially a court of last resort which explicitly or implicitly lays down a legal proposition, constitutes a source of law. The importance of precedent can be gauged merely by the fact that almost all authors from the above-mentioned regions treat precedent as a source of law.
The above view may be undisputed in our own times but historically and jurisprudentially, it has always been disputed. Ascribing authoritative force to a precedent is to some extent grounded on the assumption that court decisions are a source of law and that judges are entitled to make law in much the same sense as the legislator. The role of the judge in the process of adjudication as a law maker is the subject of disagreement and debate. Many famous jurists, among them Bacon, Hale, and Blackstone, were convinced that the office of the judge was only to declare and interpret the law, but not to make it. 2