The Role of the Judge in the Evolution of the Common Law: A Legal Historian’s Perspective

Abstract

The Common Law is buttressed by the involvement of Judges in its evolutionary process. Arguably, Judges make law through the creation of legal rules or by their interpretation of statute as the times change.1 In the landmark English case of R v R2, this was evident where the UK Supreme Court (formerly the House of Lords) concluded that the traditional view that a husband could not be guilty of raping his wife was now unacceptable therefore resulting in Marital Rape as an offence. Interestingly, in some countries including the Bahamas the marital rape exemption still applies.

“The role of a Judge is to serve the community in the pivotal role of administering justice.”3 This has certainly been a foundational view over the centuries and continues to exist. There is a view albeit from those on the receiving end of sentencing in criminal matters that the role of a Judge is simply to send persons to prison.4“In a system of judge made law, judges are nominally bound to follow precedent whenever deciding cases, but in actual fact do depart from precedent from time to time.”5 At the commencement of legal studies we would have all discussed and/or debated the merits of stare decisis, however, without the departures from precedent through the formation of a new rule, the law could never evolve.