Judicial decisions may make law, but they can not alter it- Explain.

INTRODUCTION:

 The role of the judiciary is crucial in the administration of justice in any legal system. Where the judges are conservative and literalist – or, as succinctly put by a scholar, “worshippers of traditional blind-folded balance-wielding goddess of justice”[1] beneficial and progressive legislations may be whittled away by their narrow interpretations and social advancement thwarted. But where they are activist, liberal and forward-looking, they can act as engines of social change and progress. Even in the absence of legislation they may recognize and enforce individual and group rights by resorting to the constitutional principles and objectives. Understandably, there is an on-going debate on the nature of judicial functions and the question whether the judges can make or alter the law.[2] One point of view is that judges are not legislators but are merely the interpreters of law.[3] Their task is to mechanically follow and apply the rules laid down by the legislature, unconcerned with consequences of their decisions. The other is that the judges not only interpret and apply the law but they also make the law. Law is not a set of immutable propositions valid for all times, places and circumstances. The courts should take notice of the changed social and economic contexts in interpreting the meaning of law and determining the rights and obligations of the parties. In other words, the judges must take cognizance of the social needs and requirements and economic and political compulsions of the community; recognize changes taking place in a fast developing society; and develop, adapt and reconcile law to these changing needs and requirements[4]. Thus law-making is an inherent and inevitable part of the judicial process.

 P.N. Bhagwati, C.J., makes a very powerful case for judicial activism and creativity. Law, he asserts, cannot stand still; it must adapt itself with the changing social concepts and values. “If the bark that protects the tree fails to grow and expand along with the tree, it will shed that bark and grow a new living bark for itself.” In the same way, if the law fails to respond to the requirements of a changing society, then either it will stifle the growth of the society and choke its progress, or if the society is vigorous enough, it will throw away the law that stands in the way of its progress.[5] Law must have a social and economic purpose and assume a dynamic role in the process of social transformation. Law making, he argues, is an inherent and indispensable part of the judge’s function. “It is he, who infuses life and blood into the dry skeleton provided by the Legislature and creates a living organism appropriate and adequate to meet the needs of the society and by thus making and molding the law, he takes part in the work of creation.”[6]

 If judicial decisions are never fully predictable, they should never be arbitrary. Any system of law requires a minimum of certainty, and any dispute settlement system of foresee ability. Furthermore, these systems assume that persons in comparable situations are treated as comparable. Precedent plays an irreplaceable role in this respect. For the parties it is the guarantor of certainty and equality of treatment. Constantly follow precedent also freezes the law, and prevents it from progressing according to new demands of society. A balance must be found for the judge and arbitrator between the necessary certainty and the necessary evolution of the law.

 In this respect, national law lays out the rules that are most often designed to uphold the security level of subordinate courts and to leave jurisprudential developments in the care of the highest courts. However, they seek to achieve this result by different routes.

THE COMMON ENGLISH LAW:

There are many opinions regarding the role of the judge in judicial decisions, both from commentators, and from the justices themselves. In a recent address Justice Michael Kirby (Australian) assessed changes in judicial reasoning, and the current backdrop of judicial reasoning within the High Court. He noted a need for judicial activism and for the High Court to consider policy principle and rules to ensure that laws are interpreted in ways that meets the needs of the community they serve.

We know that the English Common Law follows the rule of stare decisive, or more precisely, the rule of stare rationibus decisive: courts are bound by the reasoning of the judgments already rendered. These judgments create the law, and that law must be respected.

Such a radical solution will obviously require accommodations. On the one hand, litigants and judges tirelessly seek to distinguish the cases they are dealing with from the precedents invoked. This is an exercise in which the Anglo-Saxon lawyers engage with delectation. On the other hand, the House of Lords, in a well known practice statement of 1966, recalled that it considered its earlier decisions ‘as normally binding’, but reserved its right ‘to depart from a previous decision when it appears right to do so’.[7]

The situation is in principle very different in civil law countries, where the judge occupies a different role. In principle, the judge does not create law. For example, in France, Article 5 of the Civil Code forbids judges to proceed by way of arret de reglement, that is to establish a general rule in a specific proceeding.

The courts nevertheless inspire themselves in each case by solutions offered in previous instances. This is particularly true in case of jurisprudence constante or ständige Rechtsprechung. To ensure this, jurisprudence obviously needs a sufficient degree of clarity, continuity and permanence. However, some judgments on questions of principle rendered by high courts can quickly acquire such authority, while others will find it harder to obtain. This concept is clearly more flexible than the rule of stare decisive.

In the end, in all national laws, precedent is the starting point of judges’ reflection. They hold on to it mostly for the sake of legal certainty, for fear of being censored by higher courts or even for intellectual laziness.

THE RULE OF LAW:

Judges interpret and explain statutes. Rules of equity and good conscience are incorporated into law through judicial decisions. Whenever the law is silent on a point, the judge has to decide the case according to his idea of what is equitable.

Justice denotes the presence of a system which gives to every person his due. The law is the practical expression of justice. Justice is the sum total of all social virtues and, in particular, it signifies equality of opportunity and equality before law. There cannot be justice in the abstract; it can only be conceived in terms of the economic, social and political philosophy and policy of the State. Modern jurisprudence must concern itself more and more with access to justice.[8] Legal social engineering requires legal solutions for socio-economic difficulties of a nation. When judges grant relief in public interest litigations, they do not act as a parallel government. They simply enforce the constitutional rights of the underprivileged groups in the society and obligate the executive branch of the State to carry out their legal and constitutional obligations.

JUDICIAL ACTIVISM IN BANGLADESH:

The classical Shari‘a law on family relations is based on patriarchal family organization and male privileges, leading to legal and social discrimination against women and reducing them to an inferior status which is incompatible with present-day notions of gender equality and social justice. The discrimination against Muslim women is especially pronounced in such vital matters as marriage, divorce, maintenance and inheritance and yet, these are the institutions which form the bedrock of security and stability in family life. So, judicial activism in Muslim family law would, in effect, denote a conscious effort on the part of the courts to remove the discriminations and disabilities by means of a liberal and creative interpretation of law and secure to women equality of rights and social justice in keeping with the spirit and goals of the Constitution. Making out a strong case for reform and regeneration of Muslim family law through judicial creativity, Aftab Hussain, J., a renowned activist and reformist judge of Pakistan, contends that static and immutable concepts, doctrines and laws cannot keep pace with the dynamism of social orders. Change is the law of nature. Changes in values and transformation of social orders demand reevaluation, reinterpretation and reform of the rules, regulations and laws governing the legal, political, social and economic institutions. This is evident from the problems arising, for example, out of the rapid transformation of family life. These modern problems demand modern solutions which must be in keeping with the spirit of the time.[9] Similarly, referring to the necessity for removal of gender inequality and discrimination against women and advocating an activist judicial stance in this regard, Mohammad Fazlul Karim, J., of the Appellate Division of the Bangladesh Supreme Court observes: “There are discriminations against women in the society. We will have to come out of this situation by changing our attitudes. The judges dealing with the cases regarding women will have to think how to give relief to the victims.”[10] Referring to the unbridled, arbitrary and unilateral power of Muslim husbands to divorce their wives and lamenting the miserable lot of the wives, in Mohammed Haneefa v. Pathummal Beevi, 1972 KLT 512 at 514.

The observations of judges quoted here show that if gender discrimination in Muslim family law is to be removed and genuine equality of rights between the sexes achieved, the courts must take a pro-active role in deciding questions involving women’s rights.

JUDGES MAKE CONSCIOUS EFFORTS TO JUSTIFY DECISIONS:

The traditionalists,[11] consisting predominantly of the ulama, advocate strict adherence to the rules of Shari‘a law as prescribed by the classical jurists. The secularists, numerically rather insignificant and mainly consisting of a small number of feminists and left-leaning intellectuals, demand that religion-based personal laws should be abandoned and a uniform civil code of Western secular inspiration, applicable to all citizens, irrespective of religion, be adopted. The modernists, generally the upper and middle classes, bureaucrats and professional people advocate a creative reinterpretation of the Quran and Sunnah to bring about social reforms and address the needs of the modern Muslim society. As the classical Shari‘a law on family relations is heavily weighted in favor of men and against women, the modernists insist on doing away with the disabilities and discriminations suffered by women and establishing equality of rights between the sexes. Needless to say, the traditionalists vehemently resist the modernist efforts. A modernist Muslim believes that he can be both a believing and progressive Muslim. The activist role of the courts regarding interpretation of Muslim family law is close to modernist stance. The judges make conscious efforts to justify their decisions in the light of the ethos and sources of Islamic law including the Quran and Sunnah. Muslim personal law is a vast field of study; an enquiry into all its areas would have invited lop-sided treatment and superficiality. Therefore, of necessity, this enquiry has been confined to select areas – i.e., restitution of conjugal rights, polygamy, khula divorce, fatwa relating to talaq, maintenance of wives, custody of children and protection of pardanashin women – which have direct bearing on the social status of women and where judicial creativity has been pronounced.

Some rules of traditional Hanafi law are especially discriminatory against and harsh to women, and, therefore, incompatible with contemporary notions of gender equity and social justice. Our enquiry into the activist role of the Bangladesh courts has shown that they have made conscious efforts to give, wherever possible, a liberal and creative interpretation to the rules of Shari?a law, in order to adapt them to the needs of a modern, fast changing and forward-looking society and secure to women equality of rights and social justice, in keeping with the spirit and goals of the Constitution. Judicial decision has significantly enlarged the dimensions of women’s rights under that law and narrowed the gap between a woman’s theoretical legal rights and her actual position in the society.

 JUDICIAL DECISIONS CAN ALTER:

Are judicial rulings based solely on laws and facts? Legal formalism holds that judges apply legal reasons to the facts of a case in a rational, mechanical, and deliberative manner. In contrast, legal realists argue that the rational application of legal reasons does not sufficiently explain the decisions of judges and that psychological, political, and social factors influence judicial rulings. One finding suggest that judicial decisions can be moved by extraneous variables that should have no bearing on legal decisions.

 Does the outcome of legal cases depend solely on laws and facts? Legal formalism holds that judges apply legal reasons to the facts of a case in a rational, mechanical, and deliberative manner[12],[13].An alternative view of the law—encapsulated in the

highly influential 20th century legal realist movement—is rooted in the observation of US Supreme Court Justice Oliver Wendell Holmes that “the life of the law has not been logic; it has been experience”[14]. Realists argue that the rational application of

legal reasons does not sufficiently explain judicial decisions and that psychological, political, and social factors influence rulings as well[15]. The realist view is commonly caricaturized by the trope that justice is “what the judge ate for breakfast”[16].

Experienced judges demonstrate how extraneous factors can sway highly consequential decisions of expert decision makers. Prior research suggests that making repeated judgments or decisions depletes individuals’ executive function and mental resources[17], which can, in turn, influence their subsequent decisions.

 Making repeated rulings can increase the likelihood of judges to simplify their decisions.

We speculate that as judge advance through the sequence of cases. They will be more likely to accept the default, status quo outcome: deny a prisoner’s request.

 CONCLUSION:

For any legal system it is a challenging task to alter the judicial decisions. Evidence suggests that when judges make repeated rulings, they show an increased tendency to rule in favor of the status quo. This tendency can be overcome by taking a break to eat a meal, consistent with previous research demonstrating the effects of a short rest, positive mood, and glucose on mental resource replenishment[18]. Finally, findings support the view that the law is indeterminate by showing that legally irrelevant situational determinants that merely taking a food break—may lead a judge to rule differently in cases with similar legal characteristics.

 REFERENCES:

Professor Mahfuza Khanam and Barrister Shafique Ahmed Trust Fund Lecture 2009 delivered at the Asiatic Society of Bangladesh.

** Former Professor, Department of History, University of Chittagong.

1.         K. L. Bhatia (ed.), Judicial Activism and Social Change (New Delhi, 1990), p. 6.

2.         Or different aspects of judicial activism see K. L. Bhatia (ed.), Op cit.; Michael Kirby, “Judicial Activism?”, The Indian Advocate 27 (1996-97): 1; A.S. Anand, “Judicial Review – Judicial Activism – Need for Caution”, Journal of the Indian Law Institute (hereafter JILI) 42 (2000): 149; Upendra Baxi, “On how not to judge the judges: notes towards evaluation of the judicial role”, JILI 25 (1983): 211; Rajeev Dhavan, R. Sudarshan and Salman Khurshid (eds.), Judges and the Judicial Power (London, 1985).

3.         K. L. Bhatia (ed.), Op. cit., p. 39.

4.                     Ibid., 38.

5.         Muhammad Haleem, “Law, Justice and Society”, PLD 1986 Journal 205, p. 211.

6.         See K.L. Bhatia, “Kaleidoscopic View of Jurisprudential Dimensions of Judicial Activism with Reference to Swadeshi Jurisprudence: Saint or Sinner”, in K.L. Bhatia (ed.), Op. cit., p. 137.

7.          L. Bhatia (ed.), Op. cit., p. 40.

8.          Lord Denning, The Discipline of Law, 296 (1979).

 9.        Aftab Hussain, Status of Women in Islam (Lahore, 1987), 81.

10.         The Daily Star, 3 November 2008, P. 3.

1.       See John L. Esposito, The Islamic Threat: Myth or Reality? (2^nd ed., New York, Oxford, 1995),     7-8.
2.       Leiter B (2005) The Blackwell Guide to Philosophy of Law and Legal Theory, eds

              Edmundson W, Golding M (Blackwell, Oxford), pp 50–66.

13.         Neuborne B (1992) Of sausage factories and syllogism machines: Formalism, realism

and exclusionary selection techniques. NYU L Rev. 67:419–449.

14. Holmes OW (1881) The Common Law (Little, Brown, Boston).

15. Frank J (1930) Law and the Modern Mind (Brentano’s, New York).

16. Kozinski A (1993) What I ate for breakfast and other mysteries of judicial decision

making. Loyola LA L Rev 26:993.

17. Muraven M, Baumeister RF (2000) Self-regulation and depletion of limited resources:

Does self-control resemble a muscle? Psychol Bull 126:247–259.

18.     Tyler JM, Burns KC (2008) After depletion: The replenishment of the self’s regulatory

resources. Self Ident 7:305–321.

19. Tice DM, Baumeister RF, Shmueli D, MuravenM(2007) Restoring the self: Positive affect

helps improve self-regulation following ego depletion. J Exp Soc Psychol 43:379–384.

20. Gailliot MT, Baumeister RF (2007) The physiology of willpower: Linking blood glucose

to self-control. Pers Soc Psychol Rev 11:303–327.