Are Judges the Makers or Discoverers of the Law? Theories of Adjudication and Stare Decisis with Special Reference to Case Law in Pakistan

Abstract

The debate about whether judges create or discover the law is at the centre of any discussion about stare decisis. Modern authors have discussed the views of judges and jurists in the past. This work focuses on some of the notable judges and jurists of the twentieth century, such as Lord Denning, Lord Reid, Lord Devlin, Bodenheimer, Hart, Dworkin, from the Anglo–American legal systems. The views of the latter three jurists are very complicated and need particular attention. It is also pertinent to note that no one has explored the views of leading judges and jurists in Pakistan to know which theory of adjudication they support. This work analyses some of the prominent decisions given by some of the notable Pakistani judges such as Justice Munir, Justice Cornellius, Justice Hamoodur Rahman, Justice Saleem Akhtar, Justice Wajihuddin Ahmad and others. Moreover, it discusses whether the declaratory theory or positivism can justify the binding effect of precedent. It is argued that judicial decisions may be accorded great weight in certain categories. However, granting them absolute authority is incompatible with both theories of adjudication.