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15 Isr. L. Rev. 346 (1980)
Judges and Policy

handle is hein.journals/israel15 and id is 362 raw text is: JUDGES AND POLICY* P. S. Atiyah** Nobody would deny that in a considerable proportion of cases which come before a judge for decision, the law is clear, and indeed often undisputed by the parties. In these cases, the Judge's duty raises no special problem so far as the law is concerned, though it may do so as to the facts. But it is also true that there are a significant number of cases in which the law or at least its application, is unclear, and the nature of the judicial role is then more controversial. During the last few decades legal theorists and judges themselves have often discussed these questions in various public pronouncements. In this lecture I want to focus principally on a number of assumptions and views about the judicial role which appear to be largely peculiar to the English, or perhaps Commonwealth judiciary. But before I look more closely at the English judiciary, I would like to set the discussion into a broader theoretical framework. It is, I think, possible to identify four broad theories of the nature of the judicial role in cases where the law is unclear, though there is much variation of opinion even amongst those who can be ranked as supporters of any one of these theories. The first of these is, of course, the declaratory theory of law. According to this theory, of which Blackstone has always been regarded as the leading exponent, the judge does not make the law, he merely declares it. If it is unclear, then the judge's task is to find the law. The methods by which a judge discovers the law do not, in fact, differ greatly from the methods used by judges who reject the declaratory theory. In both cases, the process of deciding, or anyhow justifying a decision on a new point of law, is complex and subtle. Every lawyer familiar with the techniques of common law judges understands and recognises the process, so there is little purpose in trying to describe it. * Lionel Cohen Lecture delivered on 26 May 1980 at the Faculty of Law, The Hebrew University of Jerusalem. ** Professor of Law, St. John's College, Oxford. 346

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