The traditional view of the law making process is that Parliament makes the law through acts of parliament and delegated legislation and judges merely apply it in court to the cases presented before them. The main reason for this being that Members of Parliament are democratically elected to make law Whereas judges are appointed by the Lord Chancellor to decide cases.
Although theoretically this should be true in reality judges can and do make law through the operation of the doctrine of judicial precedent and statutory interpretation. in the first place historically, a great deal of English law has been made by judicial decisions. contract and tort are still largely judge made laws.
the application of law whether case law or statute to a particular case is not usually an automatic matter. terminology may be vague or ambiguous, new developments to social life have to be accommodated and the procedure requires interpretation as well as application. judicial decision does not always make a decision obvious and obligatory, there may be conflicting precedents, their applications may be unclear and there are ways of getting round a precedent that would otherwise produce an undesirable result.
Jusges in adapting to social changes make law.this can be illustrated by the case of MCloughlin v o’briean.in this case the court decided that a secondary victim can claim damages from the defendant for his psychiatric injury.
where precedents do not spell out what should be done in a case before them,judges nevertheless have to make a decision. they cannot simply say that the law is unclear and refer it back to the parliament even though in some cases they point out that the cases before them would be more appropriately decided by those who have been democratically elected to do so, this was the case in airdale nhs trust v bland and Marks & Spencer v one in a million. in these difficult cases or novel situations judges can be said to be formulating original precedent....