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are occasions where the judges feel that, given the failure of Parliament to take the initiative, they have little choice but to act. A good example is provided by the House of Lords’ ruling in RvR [1991] 3 WLR 767 to the effect that a husband could be guilty of raping his wife. Faced with the choice of either being pilloried for upholding the husband’s immunity or usurping the function of Parliament and altering the law, their Lordships opted for the latter. When accused of such judicial activism judges will, of course, insist that, under the theory of the common law, they are ‘discovering’ the law rather than making it. Where the issue is the correct interpretation of a statute, judges will claim that they are simply giving effect to the intention of Parliament. These answers mask the fact that, parliamentary sovereignty notwithstanding, judges in the higher courts have considerable discretion as to whether or not they will intervene and develop the law in new and bold directions. As Lord Reid observed in Black-Clawson International Ltd v Papierwerke Waldhoff-Anschaffenburg AG [1975] AC 591 (at 613):
DOI link for are occasions where the judges feel that, given the failure of Parliament to take the initiative, they have little choice but to act. A good example is provided by the House of Lords’ ruling in RvR [1991] 3 WLR 767 to the effect that a husband could be guilty of raping his wife. Faced with the choice of either being pilloried for upholding the husband’s immunity or usurping the function of Parliament and altering the law, their Lordships opted for the latter. When accused of such judicial activism judges will, of course, insist that, under the theory of the common law, they are ‘discovering’ the law rather than making it. Where the issue is the correct interpretation of a statute, judges will claim that they are simply giving effect to the intention of Parliament. These answers mask the fact that, parliamentary sovereignty notwithstanding, judges in the higher courts have considerable discretion as to whether or not they will intervene and develop the law in new and bold directions. As Lord Reid observed in Black-Clawson International Ltd v Papierwerke Waldhoff-Anschaffenburg AG [1975] AC 591 (at 613):
are occasions where the judges feel that, given the failure of Parliament to take the initiative, they have little choice but to act. A good example is provided by the House of Lords’ ruling in RvR [1991] 3 WLR 767 to the effect that a husband could be guilty of raping his wife. Faced with the choice of either being pilloried for upholding the husband’s immunity or usurping the function of Parliament and altering the law, their Lordships opted for the latter. When accused of such judicial activism judges will, of course, insist that, under the theory of the common law, they are ‘discovering’ the law rather than making it. Where the issue is the correct interpretation of a statute, judges will claim that they are simply giving effect to the intention of Parliament. These answers mask the fact that, parliamentary sovereignty notwithstanding, judges in the higher courts have considerable discretion as to whether or not they will intervene and develop the law in new and bold directions. As Lord Reid observed in Black-Clawson International Ltd v Papierwerke Waldhoff-Anschaffenburg AG [1975] AC 591 (at 613):
ABSTRACT
Need I say my Lords, that I am no advocate of the right of judges to create new criminal offences ... But ... in the sphere of criminal law, I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for.
