This document provides a review of an article on the limits of judicial lawmaking and prospective overruling. It discusses how courts increasingly take on a lawmaking role, as the Blackstonian view of courts merely declaring existing law has diminished. It analyzes several cases where courts established new legal principles or overturned prior doctrines. While courts are not suited to implement institutional reforms, they do initiate basic legal changes through reinterpreting constitutions or innovative rulings that pave the way for later legislative action. The conclusion examines whether courts should intrude to change unjust principles or remain passive, noting there is no simple answer.

1. UNIVERSITY OF PETROLEUM AND ENERGY STUDIES,
DEHRADUN
COLLGE OF LEGAL STUDIES
ARTICLE REVIEW ON:
LIMITS OF JUDICIAL LAWMAKING AND PROSPECTIVE
OVERRULING
Submission date: 22nd
April, 2013
Submitted to: Submitted by:
Mr. Toby Thomas Dhruv Tripathi
Asst. Professor B.A. LL.B (IV Sem.)
College of Legal Studies Enrollment No. R450211038
UPES, DEHRADUN SAP ID: 500017513

2. [T]he law is like the pants you bought last year for a
growing boy, but it is always this year and the seams are popped
and the shankbone's to the breeze. The law is always too short
and too tight for growing humankind. The best you can do
is do something and then make up some law to fit and by the time that
law gets on the books you would have done something different.
--Robert Penn Warren
In this article Wolfgang Friedman stated that the Blackstonian principle of the “declaratory”
function of the courts, holding that the responsibility of the court is not to “enunciate a new
law but to continue and give further details about the old one,” has long been little more than
a phantom. From Holmes and Geny to Pound and Cardozo, existing jurists have increasingly
renowned and expressed the lawmaking functions of the courts. The essential transformations
which, for example, contracts, torts or family law have undergone at the hands of the courts
have made it more and more difficult to maintain the time-honoured fiction of the declaratory
role of the judge.
The notable maxim that " the Constitution is what the courts say it is " has, if anything, been
armoured by the significant decisions rendered by the court at some stage in the last decade in
such matters as school segregation, voting rights and the redrawing of election districts. The
House of Lords itself has now concealed the loose ends of the doctrine. In three recent
judgments the House has in quick succession, asserted its lawmaking function, not in areas of
marginal interpretation but of basic impact. In Shaw's case, the House of Lords asserted its
power to supplement and, by implication, to depart from the statutory regulation of criminal
law, through the revival of a common law offence called '' conspiracy to corrupt public
morals." In Hedley Byrne v. Heller the House, not content with the dismissal of an action for
damages because the defendant had excluded legal responsibility, asserted, in a series of
elaborate per curiam statements, a new legal principle of great financial importance, i.e., the
responsibility of those who negligently make statements on financial soundness expected to
be used by third par tie. And in Rookes v. Barnard the House revived an all but forgotten tort
of intimidation, and resurrected the tort of conspiracy for economic disputcs which had been
all but buried in Crofter Handwoven Harris Tweed Co. v. Veitch. By establishing legal
accountability for damages in the case of an emblematic union action instigated by a union
organiser and two fellow employees designed to coerce the employer (BOAC) into certain

3. behaviour, the House profoundly modified the legal and economic status of trade unions, and
neutralised the basic provisions of the Trade Disputes Act of 1906. Separation of function is
not confined to the democratic doctrine of separation of powers; it is part of the essential
structure of any developed legal system.
In an autonomous society, the processes of administration, legislation and adjudication are
more obviously divergent than in a dictatorial society, where legislative and administrative
procedures lean to' join together and the judges are expected to be the executants of the
political dogma of the government. But even in such societies, the three purposes remain
usually separate.
It is at this instant a custom that courts, not only of common law jurisdictions but also those
which have codified constitutional law as their base, participate in the lawmaking process. It
is the malfunction or incapacity of the legislature to act where there is, nevertheless, a
distracted need for creative lawmaking. Whether it be gridlock or a denial to face up to
legislative or political hazards, there is repeatedly a deferment or rebuttal to act.
The nature of the judicial function enforces positive perimeter upon judicial reform. The
difference between institutional change and the modification of liabilities, as a general
condition for what it is appropriate and indecent for a court to do, is too simple. In Brown v.
Board of Education - judgment that initiated a period of almost unprecedented legal and
social change in the United States-the Supreme Court held the racial school segregation
system prevailing in most of the Southern states to be unconstitutional, thus overruling its
own earlier doctrine that „( separate but equal ‟) educational facilities were compatible with
the Constitution.” In this case, the institutional and significance change was initiated by the
court, and it was left to the other two branches of government-the legislative and the
executive to elaborate the change.
Thus it stay on commonly true that courts are not equipped to fit into place in law reforms
which require institutional and administrative arrangements, this does not mean that courts do
not at times instigate basic legal changes, through the reinterpretation of constitutions, or
through audacious judicial innovations, which lay the foundation for subsequent legislative
changes.
It engages a clear access that courts do originate new law, and the very posing of the question
whether the new rule should be applied all together or only prospectively designate

4. awareness of its legislative aspects. In the legislative process the problem of retroactivity is,
of course, a familiar one, and it is generally, at least in criminal statutes, held to be
irreconcilable with the principles of a democratic system of government. It is now usual
among modern students of the judicial course of action that every decision, whether analysis
of a statute or of a precedent, has ingenious elements, and that a greater or lesser measure of
change is implied in every act of Interpretation.
In the conclusion we can conclude that the allusion may briefly be made to two substitute
ways of decreasing the dilemma of judicial lawmaking. One is the prolonged use of the
declaratory judgment. Separately the declaratory judgment, it is alternative to a more
systematised form of legislative law development that can make sure a more methodic
procedure of law revision, especially in the field of “lawyer‟s law.”
We can also conclude that it is a difficult question for a court to make a decision whether, in
the face of continued legislative inaction, it should intrude to change a deliberately unjust and
outdated legal principle, sometimes at the risk of stinging the legislator into retaliatory action,
or remain passive. Indeed the answer cannot be given in terms of subject matter. The long
unsettled development of the dogmas of liability of occupiers to visitors could simply have
been carried out by the courts, by interpretations.
Thanking You!