The writers of Reasonable Doubt are looking at legal myths. Here’s a common one.

Parliament makes the law and the court’s job is to enforce the law.

Let’s put this one to sleep right now: it is absolutely not true. I doubt anything could be further from the truth in our Canadian democracy.

In our common law system, we have two primary sources of law: judge-made law and legislation, the latter being passed by the wise folks chosen by us as electors.

That’s right: judges make the law.

This goes far back in our common history with Britain to the time where the King or Queen made all law themselves. See, back in the day (before 1215), the reigning British monarch imposed his will upon his subjects. His will was the law. Ostensibly, he decided what the law would be based on customs and traditions and what had been done in previous situations. Sometime, he just decided the law based how he thought things should be with no good reason. In other words, the law could easily be arbitrary.

It was not until 1215, when the feudal barons imposed the Magna Carta on King John, forcing him to sign it. The Charter of Liberties preceded it by 115 years, but it was narrower in scope than the Magna Carta. It only abridged the King’s right to interfere with certain select groups, such nobility and church property. Oddly, that document also forgave all murders that took place before he was crowned.

The Magna Carta limited what the monarch could do, but it did not keep him from creating laws. Unlike other systems which has comprehensive codes setting out the law, the King continued to hear disputes and decide law. He also issued “writs” which were certain orders. People would go to the King’s different courts to resolve disputes and get decisions. The King’s authority was delegated to persons to decide these issues (judges).

When the Magna Carta was introduced, it limited the King’s right to collect taxes by prohibiting him from imposing a tax unless he had consulted with his royal council, a group of barons chosen by the barons themselves. These barons were empowered to seize royal property if the King disobeyed the Charter. It was this group that gradually evolved into a parliament.

However, judges continued to decide cases which lead to law being created, most importantly between private individuals.

When people say that Parliament creates the law and judges enforce them, they are probably thinking of parliamentary supremacy. This is the notion that, while judges can validly make laws, Parliament can make any law it wishes. The only limit to this is constitutional law. In Canada, we have two statutes, the Constitution Act 1867 and the Constitution Act 1982, the latter which includes the Charter of Rights and Freedoms. There are also a variety of unwritten customs and traditions that have evolved over time to have the force of law. We recently saw this in the Supreme Court of Canada’s decision in the Nadon appointment, where the court effectively found that the Supreme Court of Canada had, with time, acquired a constitutional status, meaning that any changes to its enabling act, the Supreme Court Act, can only be made in the same manner as the constitution is changed (i.e. with the consent of all the provinces).

Judge-made law is vital to how our society runs. Much of our society revolves around legal doctrines created by judges, not Parliament.

Almost all contract law is judge-made law. The law of negligence is also almost all judge-made law. Negligence is involved in every car accident case in B.C., which makes up over one-third of all lawsuits filed in B.C. Supreme Court.

If it were not for judge made laws, then there would be serious gaps in how the law works and how we expect it to work. A pedestrian hit by a driver who was sending a text message would not be able to sue that driver for what could be very serious injuries.

Still, even when constitutional legislation is passed, courts play a vital role in interpreting legislation in a manner that effectively creates law. In our common law system, one judge’s interpretation of a law is binding on future judges under the principle of stare decisis. This is different from what happens in codified legal systems: in such systems, judge’s decisions are not binding on future judges. They may have persuasive value, but it is left to the judge hearing the case to decide the outcome of a case based on his or her interpretation of the legal code.

Sometimes, these interpretations have drastic effects on how a law is interpreted.

So, do judges only enforce the law? No, far from it. They play an integral role in the creation of law. In fact, our constitution recognizes judges as a third branch of government.

Should judges only enforce the law? That’s a bigger question. We are all bound to disagree with at least some of the laws and legal decisions made in this country. Respecting that and complying with the law despite that disagreement is a cornerstone of a civilized society. Because of that, we vest huge trust in our elected officials and judges. While each have inherent weaknesses and strengths, I would posit that our present system strikes a decent balance in the vesting of law-making power between elected officials, who have to please the flavour-of-the-week voter, and judges, who cannot be removed from office when they make bad law.