ABSTRACT
The UK legal system generates a good deal of judicial law-making. Such creativity, though, has not always been recognised. In 1892, Lord Esher said in Willis v Baddeley that there was ‘no such thing as judge-made law, for the judges do not make the law’. 1
Today, most observers are more likely to accept the statement of Lord Simon of Glaisdale, who said in Lynch v Director of Public Prosecutions for Northern Ireland (1975), ‘I am all for recognising frankly that judges do make law.’ 2 Lord Scarman was just as explicit when he noted in a House of Lords case, Duport Steel v Sirs (1980), that ‘In our society, the judges have in some aspects of their work a discretionary power to do justice so wide that they may be regarded as lawmakers.’ 3
Today, to refl ect a healthily expanding public concern with ‘justice through the law’, a great deal of public, social, medical, political, sporting and educational life has become justiciable. Our law, though, must be allowed to develop in a socially organic way where possible, so that our senior judges can avoid the ossifi cation of established rules.
