The basic objective behind the establishment of courts in society was never just to administer the law but to dispense justice. The ultimate goal sought to be achieved by the courts was thus to carry out complete justice between parties and to ensure that rights are delivered to those to whom they belonged to.
Once a judicial determination—be it of a point of fact or a point of law—has been made and if such a determination covers not only the ones litigating before the courts but some others also, then the dictates of justice would command that the benefits accruing from such a determination should not be restricted only to the litigating parties but should be extended even to those who had not indulged in litigation unless there were some extraordinary unexceptionable reasons to the contrary and that all powers, including the powers inherent in the courts, be invoked for the purposes. This would not only ensure justice for all but would also have the effect of eliminating unnecessary litigation.
There is a huge gap between law and society. The judiciary acts as a partner in creating law. As a partner, the judge maintains the coherence of the legal system as a whole. Each particular creation of laws has general implications. The interpretation of a single statute affects the interpretation of all the need to bridge the gap between law and society. In the past, too, this was understood to be central to the role of judging. A legal system is not a confederation of laws. Legal rules and principles together constitute a system of law whose different parts are tightly linked. The judge is a partner in creating this system of law. The extent of this partnership varies with the type of law being created. In creating common law, the judge is a senior partner. In creating enacted law, the judge is a junior partner.
Judicial lawmaking that bridges the gap between law and society is consistent not only with society’s basic values but also with society’s fundamental perception of the role of the judiciary. The power of a judge to bridge the gap between law and society in a society that, like Montesquieu states, sees the judge merely as the mouthpiece of the legislature and is different from the judge’s power in a society that views comprehensive judicial lawmaking as legitimate. Society’s perception of the judicial role however, is fluid. Not only is judicial activity influenced by it, but it also influences that perception. In common law systems, bridging the gap between law and society appears to be a central role of the judiciary. The ample role of the judge in a democracy is to protect the Constitution and democracy itself. Legal systems with formal constitutions impose this task on judges, but judges also play this role in legal systems with no formal constitution.
Objectivity makes strenuous demands, requiring the judge to take moral stock of himself. The judge must be aware that he may have values that lack general acceptance and that his personal opinions may be exceptional and unusual. The judge must be capable of looking at himself from the outside and of analysing, criticising, and controlling himself. A judge who thinks that he/she knows all and that his opinions are right and proper to the exclusion of all else, cannot properly fulfil his/her role in society. The judge is a product of the times, living in and shaped by a given society in a given era.
The judge always acts within the limits of a court. He lives within a judicial tradition. The same spark of wisdom passes from one generation of judges to the next. This wisdom is mostly unwritten, but it penetrates little by little into the judge’s consciousness and makes his thinking more objective. The judge is part of a legal system that establishes a framework for the factors that a judge may and may not consider. The heavier the weight of the system, the greater the objectification of the judicial process.