This is a podcast from the archives of the BBC Reith Lectures.

This lecture in the series Law, Justice and Democracy, given by John McCluskey, was originally

broadcast in 1986.

In deciding the cases that come before them, judges can and do make law.

And Parliament is free to accept that judge-made law or to alter it. If Parliament

chooses to legislate, then there can, at least in theory, be no conflict between the law

made by Parliament and the law applied in the courts. And if anyone wants to assert that the law

made by Parliament is of an inferior

metal, then the one audience that will not listen to that argument is the judiciary. But if we are

to consider allowing the validity of laws enacted by Parliament to be challenged in the courts on the

ground of supposed conflict with some fundamental

or supreme law, if we're to think of allowing the judge's solutions based upon their

interpretation of an entrenched charter of fundamental law to prevail over those of Parliament,

then perhaps we ought first to give some thought to the character of law

made by judges. I shall look at one field of law in which the courts were immensely creative

and in which the judge made law inevitably affected the lives of millions who had no part in the making

of that law, little knowledge of its content and no freedom to contract out of it,

the field of law governing the rights of injured persons to recover damages in respect of accidental

injury. Unlike many other areas of the law, such as those concerned with commercial contracts or

wills, it was not practicable for most of the people affected by the law

to study the judge made rules with a view to modifying their behaviour

so as to fit within the rules.

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