Judges as Legislators: Not Whether But How

  • Dale Gibson


Although judicial legislation has always been an important feature of the legal system, it is not often acknowledged publicly. This has meant that the proper limits of the process, and the means by which it can be carried out most effectively, have not received due attention from legal writers. This article addresses those questions. It examines the reasons judges make laws, the reasons for their reluctance to admit publicly that they do so, the formal and functional constraints that should govern their law-making, and some procedures by which the process may be assisted and improved.