ABSTRACT
Case law is the product of judicial determination; it is sometimes referred to as judgemade law. Yet common law systems claim they operate the rule of law, not of men (and traditionally, and in large part continuing today, appellant courts are staffed by male judges). The human element to law’s operation appears inescapable; how is case law justified, legitimized and rescued from claims of arbitrariness and subjectivity? At one time – following on from the eighteenth century enlightenment desires for system, clarity and systematic rationality – a progressive view was that codification was the solution to the problem of a perceived chaos of competing cases and seemingly ad hoc, if not retrospective judicial ‘law making’.5 With limited (if sometimes, as in India, notable) exceptions this did not occur and most large-scale schemes of converting case law into statutes consisted mainly of consolidating legislation where the aim was to preserve and consolidate the existing structure of principles and rules developed over time by common law judges.
