Judicial Law-Making and the Common Law of Negligence

Drawing on the jurisprudence of the tort of negligence, this article examines the importance of, and challenges inherent in, judicial law-making. It proposes a taxonomy of judicial law-making to develop an analytical framework to explain when and how judges should make law, and what effect this may have on precedents and general principles. The core argument is that judges should openly acknowledge their law-making role and carry out this function transparently, developing appropriate guidelines and protocols. Courts should not shy away from policy considerations in shaping legal principles but should remain mindful of the boundary between the judiciary and the legislature.