Judge Made Law: Everything You Need to Know
A judge made law, also known as stare decisis or case law, is the legal rule, ideal, or standard that is based on the past decisions of other judges in past cases, instead of laws made by an elected, legislative body.3 min read
2. Constitutional Duties of the Law
3. The Progressive Improvement of the Law
4. Occasions for Judges to Create Laws
A judge made law, also known as stare decisis or case law, is the legal rule, ideal, or standard that is based on the past decisions of other judges in past cases, instead of laws made by an elected, legislative body.
How Judge Made Laws Work
Judge made laws are ideally cited within the venue or district where they were made. For instance, if a case is in the Ninth Federal District, it might not be best to cite a decision in the Fourth Federal District. The court clearly states legal principles and makes them part of the final decisions arrived at when certain parts of the law are applied to individual cases.
Unlike the laws made by the legislature, judge made laws aren't fully developed. They're always being tweaked. As a result, they're often easily changed. Every case used as a precedent for a judge made law clearly defines the facts of the dispute and how the judge reached a final decision. For the record, it's possible for a case to have aspects that are favored by some judges and disfavored by other judges.
In the U.S., since the legal system favors a common law system, the decisions of higher courts are binding on lower courts that handle cases with similar facts and issues. The concept of judge made laws works by using the past decisions of other judges in cases similar to the ones being looked into.
Constitutional Duties of the Law
Apart from compensating a party who has been harmed, a major duty of laws that address civil wrongs is to teach people lessons that improve how they treat others. With the help of laws that threaten to punish bad behavior and promise to reward good behavior, people can become law-abiding, which they may not otherwise become.
Rewards and punishments are parts of our common law system. This gives judges and lawmakers the power to control the conduct of people while keeping in mind how people's behavior can be influenced by fair or unfair judgments.
The Progressive Improvement of the Law
Over time, as the lawmaking arm of the government makes and amends the laws that govern the land, judges and the body of elected lawmakers (also known as the legislature) work together to improve the laws, making them permanent and generally applicable. Though it's the job of the legislature to make the laws that state how citizens should live, it remains the job of the judges to interpret them.
So, the question isn't whether or not judges are involved in the law-making process but whether they're correctly interpreting the law for justice to be served. Therefore, when judges are called upon to understand and interpret the law and the godly motives of the lawmakers for making the law, they have the freedom to employ their discretion to make decisions never before made by other judges. But, they must abide by the written law, even though they're not strictly limited to it.
Before 1971, everyone believed that kings and queens couldn't be legally challenged for doing wrong because they were above the law. Therefore, people who were badly treated by them had nowhere to turn for justice. However, the Evans decision changed Colorado common law by outlawing the freedom of rulers from responsibility and punishment for their wrongs. Unfortunately, that development created a significant opportunity for mischief.
The court wisely acknowledged its limited ability to provide all-inclusive rules from any single case without loopholes. So, it relied on the legislature to make laws that create a balance between due respect for rulers and their accountability to the law. As a result, there are now lawful exceptions to the 1971 common law that prevent rulers from getting away with illegal behavior. The court and lawmakers have worked together, over time, to improve the law by checks and balances, which have resulted in today's Colorado Governmental Immunity Act.
Occasions for Judges to Create Laws
Judges have and use the power to create new judge made laws in difficult cases.
There are two fields in which judges play a role in creating laws:
- In developing common law
- In interpreting statutes
However, judges aren't free to make laws entirely based on their personal views without checks.
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