Key Takeaways

  • Judge made law, or common law, is created through judicial decisions rather than legislative enactments.
  • Judges shape the law by interpreting statutes and filling gaps where legislation is silent or ambiguous.
  • Judicial lawmaking operates under constraints such as precedent (stare decisis) and statutory interpretation.
  • Common law evolves incrementally through case decisions, with courts balancing consistency and adaptation to social needs.
  • Debate exists about the democratic legitimacy of judge made law and the appropriate limits of judicial discretion.

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. 

How Judicial Precedent Influences Legal Development

Judicial precedent is the foundation of judge made law. It operates on the principle of stare decisis, meaning that courts should follow prior rulings when deciding similar cases. This ensures consistency, predictability, and stability in the legal system. Higher court decisions are binding on lower courts, while decisions from courts of equal rank may be persuasive but not obligatory.

There are two main types of precedent:

  • Binding precedent: Must be followed in future cases with similar facts within the same jurisdiction.
  • Persuasive precedent: May influence a decision but is not mandatory; this includes rulings from other jurisdictions or lower courts.

Judges may also distinguish cases on their facts, allowing them to reach different outcomes without overturning established precedent. This flexibility helps adapt the law to changing societal contexts without creating abrupt legal shifts.

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. 

Judicial Lawmaking and Its Constitutional Limits

Although judges play a role in shaping the law, they do so within constitutional boundaries. In democratic systems, the legislature is the primary lawmaking body, while the judiciary interprets and applies those laws. However, gaps in legislation, ambiguous wording, or unforeseen scenarios often require judicial interpretation, effectively resulting in new legal principles.

Courts must:

  • Respect the separation of powers by not usurping legislative authority.
  • Ground their rulings in legal reasoning, not personal or political views.
  • Justify new interpretations based on legal precedent, public interest, or constitutional principles.

Thus, judicial lawmaking is often reactive and constrained, intended to clarify, not create, law in the abstract.

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.

Evolution and Adaptability of Judge Made Law

Judge made law is inherently evolutionary. It develops gradually through the accumulation of decisions in individual cases, allowing the legal system to respond to new problems without waiting for legislative action. This is particularly valuable in areas like tort law, contract disputes, and emerging technologies.

Key traits of this evolution include:

  • Incremental development: Legal rules change gradually, minimizing disruption.
  • Case-by-case reasoning: Judges refine doctrines based on unique fact patterns.
  • Doctrinal coherence: Courts aim to align new rulings with existing legal frameworks.

For instance, principles governing negligence and duty of care have developed extensively through judge made law, adapting to modern concepts of responsibility and risk.

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:

However, judges aren't free to make laws entirely based on their personal views without checks.

Controversies Surrounding Judicial Lawmaking

Judge made law is not without criticism. Detractors argue it may undermine democratic accountability, as judges are not elected representatives. Others fear that judicial discretion can lead to unpredictability or activism.

Common criticisms include:

  • Democratic deficit: Judges making law may bypass legislative debate and public input.
  • Judicial activism: Courts may be seen as overstepping their role by creating rather than interpreting laws.
  • Inconsistency: Legal evolution through precedent may lead to divergent rulings across jurisdictions.

Nevertheless, supporters contend that judge made law complements legislative processes by resolving unforeseen issues and interpreting broad statutory language. Ultimately, appellate review and legislative override offer checks on judicial power.

Frequently Asked Questions

  1. What is judge made law?
    Judge made law refers to legal rules developed by courts through judicial decisions rather than by legislative statutes. It is also known as case law or common law.
  2. Can judges create new laws?
    Judges do not create laws in the same way legislatures do. However, through interpreting statutes and deciding novel issues, they can establish legal principles that function as law.
  3. Why is judge made law important?
    It fills gaps where legislation is silent, adapts legal standards to evolving social contexts, and ensures consistent application of the law through precedent.
  4. Are judge made laws legally binding?
    Yes, decisions from higher courts are binding on lower courts within the same jurisdiction. These rulings form part of the legal framework just like statutory laws.
  5. How is judge made law limited?
    Judges are bound by constitutional principles, existing statutes, and the doctrine of precedent. Their role is interpretive and constrained by legal tradition and judicial review.

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