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12 J. Soc'y Pub. Tchrs. L. n.s. 22 (1972-1973)
The Judge as Law Maker

handle is hein.journals/sptlns12 and id is 30 raw text is: 22      SOCIETY OF PUBLIC TEACHERS OF LAW
THE JUDGE AS LAW MAKER
By LoRD REID
am very glad to have this opportunity of meeting and exchanging
views with those of you who belong to a sister branch of our profes-
sion. It is, I suppose, inevitable that opportunities for interchange
should be few. The next best thing is to meet as often as we can. It is
not enough that we should see each other's written work. Even that is
not always easy for us. But I think we are making some progress there.
In the House of Lords at least we turn a blind eye to the old rule that an
academic writer is not an authority until he is dead, because then he can
no longer change his mind. May I suggest to text book writers and
editors that they could usefully promote appreciation of academic work
by practising members of the profession by increasing their citations
from academic works as well as from authorities in other comparable
jurisdictions because it is not always easy for busy counsel to lay hands
on these.
I have taken as my subject today the judge as law maker. The jurist
may ask what I mean by law. It would take an hour to give a full
answer but the practical answer is that the law is what the judge says it
is. Before a point of law has been decided in court counsel must be
guarded in advising his client. But after a decision he will rely on it for
the answer-perhaps with a note of caution that a higher court may
reach a different decision. A decision of the House of Lords is final not
because it is right but because no one can say it is wrong-except
writers in legal journals.
There was a time when it was thought almost indecent to suggest
that judges make law-they only declare it. Those with a taste for fairy
tales seem to have thought that in some Aladdin's cave there is hidden
the Common Law in all its splendour and that on a judge's appointment
there descends on him knowledge of the magic words Open Sesame.
Bad decisions are given when the judge has muddled the pass word and
the wrong door opens. But we do not believe in fairy tales any more.
So we must accept the fact that for better or for worse judges do
make law, and tackle the question how do they approach their task and
how should they approach it. It takes all kinds to make a world and I do
not think that the day will or should ever come when every judge is a
legal pundit. Nine-tenths of the time of a judge at first instance is taken
up with getting at the facts-keeping control of the proceedings, watch-
ing the witnesses and evaluating the evidence. More often than not
once the facts are determined the law is clear. If it is not and the judge
goes wrong the Court of Appeal can set him right. But if he gets the
facts wrong his mistake is generally irretrievable.
No one can be equally good at everything he has to do. Even the
Admirable Crichton might have been less of a legend if he had lived
longer. The greatest lawyers are not always the best judges at first in-
stance. But I am looking rather at an Appeal Court where broadly
speaking you will find three lines of approach. There are those who
used sometimes to be referred to as black letter lawyers; careful men

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