The document discusses different perspectives on whether judges make law. It notes that while law is primarily made by parliament, judges can influence law in several ways. Judges make law by establishing precedents through applying previous court decisions to new cases. When no precedent exists, judges may formulate new legal principles. Statutory interpretation also allows judges to shape law, as they interpret ambiguous legislation. While judges do not directly make law, their role in interpreting and applying legislation through precedents means they do mold the doctrines and development of law over time.

1. KIZZA ARNOLD LUMINSA-LLB-1
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Law does not have an exact definition and different people have different definitions basing on the
way they understand the law. Many scholars have tried to define law using different terms. For
example, according to A.I. AUSTIN- “Law is an obligatory rule of conduct imposed and enforced
by the sovereign. One can say a frame work rules governing a society.” Furthermore, according to
ARISTOTLE- “Law is application of reason without passion.”- meaning the law the law should be
interpreted freely without any other feelings or emotions. However, the similarity among all these
different definitions id that law is basically a frame work of rules that govern a society.
It is very true that the law is made by parliament, a legislative body given power by the constitution
to draft law and this cannot be disputed. e.g. in Uganda. This is stipulated in Article 79(1) of the 1995
constitution of the republic of Uganda.
However, in the last few decades, there has been a notion that judges make law. So it is important for
us to establish the validity of this statement. A judge is a public official appointed or selected to hear
and decide legal matters in court. A judge can use any of the following sources of law in making
decisions in court. Acts of parliament, Common law, Doctrine of precedent (Decisions previously
made by Judges in court), Customary law among others.
The mere fact of one asking the question “do judges make laws”, implies that perhaps to some extent
actually these judges make law. This question was given birth to a great controversy where some
scholars like Lord Bentham have referred to it as a “Childish Fiction”. Thus judges
cannot make law.
However, many other scholars more so those that are followers of the “Realist School of Thought”
have placed utmost emphasis on the discretion of judges and relegated the rules to an obscure
position. It cannot easily be denied closely looking at the current legal system that sudden have played
an important role in molding the doctrines of the present day laws law for example the common law
which is commonly referred to as “judge Made law.” Nevertheless, today no informed
observer can dispute the fact that judges make law more so those of the High court. In the same way
the likes of Lord denning molded the “doctrines of the law contract” and otherwise. Some
of the manifestations of judges making law are explained here under.
The application of precedent by judges (e.g. in areas such as negligence and murder) is the main
mechanism where judges make law. Precedent are legal principles created by a court decision which
provides an example/authority for judges deciding similar cases/ issues later in court. Precedent in
Uganda is set by only the top courts in the court hierarchy and their decisions are binding to the lower
courts. They are;

2. KIZZA ARNOLD LUMINSA-LLB-1
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 Supreme Court
 Court of Appeal Courts of Precedent.
 High court.
Occasionally judges are called upon to give a ruling or make a decision when faced with scenarios/
incidents where seems to be us precedent or any guiding rule. In these scenarios the judge can be
said to be formulating original precedent thereby using his own discretion regarding when he thinks
the rules need to be applied, changed, improved or abolished. And when these decisions made by the
judge gain their “stare decisis”- a Latin word that means “Let the decision stand. Hence the
decision becomes precedent which in the long run insinuates that the judges makes law. For example,
in Opoya Vs Uganda (1967)1EA 752, the judges stated that “This court is as a general
rule bound by its previous decisions but in a criminal case where the liberty and indeed the life of
the subject is at stakes, it will not follow its previous decisions which it considers to be wrong”.
Furthermore, in A.G. V Butterworth where the judge Lord Donning stated that “it may
be in books, but if this be so, all I can say is that the sooner we make it, the butter. Therefore, a
judge in using his discretion as seen above, that means he decides not on precedent but principle.
Hence employing a case not previously formulated but consonant with the whole doctrine of law and
justices. Furthermore, because most of these common rules and statutes are often “vague and
unclear” it is always inevitable for the judge to create new law by deciding cases.
Judges furthermore, make law through statutory interpretation. It is well known that the legislature is
the one charged with the responsibility of making the laws, while judges interpret it. However, the
legislation may sometimes be ambiguous or unclear and when this occurs, the court (judges) will
need to decide between different interpretations of legislation. Since judges cannot tell the parliament
to amend every law that is unclear, the judges must take the law in their hands and interpret it to an
extent that is reasonable and in the bounds of the law. Hence should accept the responsibility of
reforming the law in the interests of clarity, efficiency and fairness, hence in the long run making
law.
This is evidence of the power of the courts in their ability to create law through their simple
interpretation of the law. However, it should be noted that this is not a power readily available such
that it can be used at the court`s convenience because the constitution provides for a complete
separation of powers of the three arms of government and in this case then legislature is the one
charged with the responsibility of making laws.
In conclusion, it is important to note that yes the power to make law is primarily vested in the
parliament and under the constitution, judges are under no obligation to make law. However, in
today’s world where time is dynamic, there is a need to constantly interpret the law to fit the ever
changing times. And since the judges cannot send back those laws for rectification, it is up to them
to exercise utmost reasonable discretion and interpret the law in such a manner that is complementary
to the current mode of life and in so doing making law.

3. KIZZA ARNOLD LUMINSA-LLB-1
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Compiled By: - KIZZA ARNOLD LUMINSA. LLB-1
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2018
The writer is a Law Student at Uganda Christian University-Mukono.