Theories of the judicial role, judicial creativity and judicial policy

1. The declaratory theory

Blackstone’s Commentaries describe judges as the depositaries of the law, whose task is to maintain and expound the old law, not to pronounce a new one. When a court overrules an earlier case, on this view it does not change the law; it declares that the earlier decision was never law. Two consequences follow: every overruling is retrospective, and the judge carries no responsibility for the content of the law.

The theory survives as an ideal of fidelity to existing materials, but as a description it is abandoned. Bentham mocked it as “dog-law” — the master waits for the dog to do wrong and then beats it — because a judge-made rule is announced only after the conduct it condemns. Austin, in The Province of Jurisprudence Determined, treated judicial law as law made by delegates of the sovereign, and criticised judges for legislating timidly rather than for legislating at all.

2. Legal realism: the judge as law-maker

The American realists turned Holmes’s prediction theory (law is a prediction of what courts will do in fact) into a programme.

• Rule-scepticism (Karl Llewellyn, The Bramble Bush, 1930): the paper rules do not decide cases; the “real rules” are the patterns of what courts do.
• Fact-scepticism (Jerome Frank, Law and the Modern Mind, 1930; Courts on Trial, 1949): the larger uncertainty lies in fact-finding, which depends on witnesses and the trial judge’s reactions.
• The judge’s decision is influenced by personality, values and the social context, and reasons are often given after the fact.

Realism exposed the role of choice but was criticised for making law unpredictable and for reducing the judge’s duty to a forecast. Its descendants are Critical Legal Studies (law as politics) and the empirical study of judicial behaviour.

3. Sociological jurisprudence: the judge as social engineer

Roscoe Pound saw law as a tool of social engineering: the judge (and the legislator) identifies the competing individual, public and social interests and adjusts them so as to secure the greatest number with the least sacrifice. Cardozo’s method of sociology belongs here. Indian courts adopted this vocabulary openly; Krishna Iyer and Bhagwati JJ. wrote of law as an instrument of social change, and the Directive Principles were used to supply the interests to be weighed.

4. Hart: discretion in the penumbra

H.L.A. Hart (The Concept of Law, 1961) gave the positivist answer. Legal rules are expressed in general language, and language has an open texture: every rule has a core of settled meaning and a penumbra of doubt. His example is a rule forbidding vehicles in a park — plainly a car, but what of a bicycle, roller skates, or a war memorial tank? In the core the judge applies the rule; in the penumbra the rule gives out and the judge must exercise discretion, making new law as a legislator would, though within constraints. Hart therefore steered between formalism (the rules always decide) and rule-scepticism (they never do).

5. Dworkin: rights, principles and the right answer

Ronald Dworkin (Taking Rights Seriously, 1977; Law’s Empire, 1986) denied that judges have strong discretion even in hard cases.

• Rules and principles. Law consists not only of rules (applied in an all-or-nothing way) but of principles, which have weight. His example is Riggs v. Palmer (New York, 1889): the heir who murdered his grandfather could not inherit, because no one may profit from his own wrong, though the wills statute said nothing of the kind.
• Principle versus policy. Arguments of principle establish individual rights; arguments of policy pursue collective goals. Judges should decide on principle and leave policy to the legislature (the “rights thesis”).
• Hercules and integrity. An ideal judge, Hercules, constructs the theory that best fits and best justifies the whole body of law, and decides by it. Law as integrity treats the community as speaking with one coherent voice; Dworkin likens the judge to a writer of a chain novel who must continue the story already written.
• The right answer thesis. Even hard cases usually have one right answer, though judges may disagree about what it is.

6. Other positions worth citing

• Julius Stone (Legal System and Lawyers’ Reasonings, 1964) showed that precedent offers “leeways of choice”, because the ratio of a case can be stated at different levels of generality, and identified “categories of illusory reference” that conceal choice behind apparently logical steps.
• Lord Devlin distinguished law-making that keeps the law in step with the settled consensus of the community from law-making that runs ahead of it, and thought judges should confine themselves to the first and leave the second to Parliament.
• Upendra Baxi (The Indian Supreme Court and Politics, 1980) treated the Court as a political actor and later described Indian PIL as social action litigation.

7. Judicial creativity: tools and techniques

Judicial creativity is law-making through the decision of cases. The tools are well known.

1. Interpretation. Choosing a purposive over a literal reading; reading down a provision to save it; reading words in to fill an evident gap.
2. Distinguishing a precedent on its material facts, which narrows its reach without overruling it.
3. Extending a principle by analogy to a new situation.
4. Overruling, including prospectively (see the note on prospective overruling).
5. Implication — finding unenumerated rights within a broad guarantee. After Maneka Gandhi v. Union of India, 1978 INSC 16, (1978) 1 SCC 248, Article 21 has yielded rights to livelihood, speedy trial, legal aid, a clean environment and, in K.S. Puttaswamy v. Union of India, 2017 INSC 801, (2017) 10 SCC 1, privacy.
6. Structural inference — the basic structure doctrine.
7. Use of international law to fill a domestic vacuum — Vishaka v. State of Rajasthan, 1997 INSC 604, (1997) 6 SCC 241, read CEDAW into Articles 14, 15, 19 and 21 and laid down guidelines on sexual harassment at work, which held the field until the 2013 Act.
8. Remedial innovation — continuing mandamus, guidelines, committees and compensation for breach of fundamental rights, supported by Article 142.

8. Judicial policy

“Judicial policy” has two meanings, and a good short note gives both.

• Policy as a ground of decision. Courts often decide by reference to the consequences of a rule — floodgates, deterrence, administrative convenience, economic efficiency. English negligence law openly uses “fair, just and reasonable” to admit policy. Dworkin objected that this makes judges legislators; the realists replied that policy is unavoidable and should be stated rather than hidden. Public policy in contract (section 23, Indian Contract Act) is the classic statutory invitation to judicial policy.
• The court as maker of public policy. In India the Supreme Court frames policy directly: guidelines on arrest, sexual harassment, police reform, environmental clean-up. The Court has also said it will not sit in judgment over economic policy unless it is illegal or arbitrary — BALCO Employees Union v. Union of India, 2001 INSC 601, (2002) 2 SCC 333, on disinvestment.

How this is examined

The August 2024 paper set “Elucidate various theories relating to judicial role” (Q.2) and a short note on judicial policy (Q.7(b)); the July 2024 internal asked for the tools and techniques of judicial creativity. For the essay, move from declaratory theory to realism to Hart and Dworkin, and end with the Indian Court as an example of creativity and its limits. A conclusion that the judge is a law-maker within the constraints of text, precedent and reasons, as Cardozo said, will be accepted by any examiner.