the tools and techniques of judicial creativity and precedent

But the idea of Roscoe Pound to treat jurisprudence as social engineering advances the idea of judicial creativity as he states that larger interests in society must be catered to and law must focus on reconciling interests of members in society while harmonizing inter-relations. Legal philosophers have been divided on this notion as many such as Dworkin, Darwin, Montesquieu merely believe that judges have been given the function of interpreting law and while some judicial creativity can be exercised, the same must be restricted and not give the judge a free hand to do as he pleases. So the debate that has always ensued is whether judges make law or merely interpret law? While earlier the notion of law was merely restricted to giving decisions based on precedents, judges slowly started playing an active role in interpreting law and trying to weave new law to protect and ensure welfare of citizens under the grunt norm which is the Constitution. The judge emphatically replied that “it is the will of the Justices” and this statement sums up the start of judicial creativity in the legal fraternity. Both of them while arguing on merits of the case did not see eye-to-eye on a particular issue when the lawyer stated that the judge was obligated to follow precedence otherwise, he did not understand the law.

In the 13th century there was a heated discussion taking place between a judge and a lawyer.

The tools and techniques of judicial creativity and precedent