Monday, June 15, 2009

Judges do make law

Yep. Legislating from the bench. Susan Estrich says there's no getting around it.

1 comment:

Bert Power said...

The real basis for the confusion is much better stated as "what is the definition of the word 'law'?". Cf. Dworkin, Law's Empire Ch. 1.

If law is thought to include only precedential cases and statutes then, yes, of course judges make law. In the face of vague statutes and conflicting authority to tell a judge to do otherwise would be tantamount to telling a man on the north pole to proceed any direction but south.

On the other hand, if law is thought to include principles and even moral principles then, of course, judges do not make law.

The problem is that when people have conflicting definitions of the word "law" (and contrary to lay belief such disagreement is pervasive among legal academics) they can have these pointless "do judges make law" debates all day long and only talk past each other.