Should judges make law?

Question

what are the advantages judges making law?

Answer 1

Judges don't make law. The people in Congress make the law.

Answer 2

This is an impossibility it would violate the separation of powers set down in the constitution. Only the legislative (the house and senate can make laws.) This is done for a very good reason people in congress are elected by the people to be there and also they have set term limits which means there is a possibility that if they don;t act as the people want them to then they can be removed. Having judges make law would be a complete disaster.

Answer 3

I think judges should make law. I think so because judges are remove from external influences. This means they are fair people.

Judges are also appointed strictly. What i mean here is that judges cannot be a member of the Cabinet and Parliament. So they can do their work fairly.

One more thing, judges can also use statutes to benefit the people of the nation. Since statutes are written in the constitution, everyone must follow it. This can be used by the judges to attain justice which in my opinion is very good.

So i think i will say that judges should make law.......

Answer 4

The legal system operates on precedent. Consequently, every time a judge writes an opinion, he or she IS making law. There is no way around it. Unless a case is EXACTLY the same as a previous decided case (which never happens), the judge is adding to the law by deciding the case.

The legislature also writes tons of laws that are internally inconsistent, or conflict with each other, or have obvious errors in wording, or lead to absurd results that no one intended. Judges are forced to deal with those too. If you like their solutions, you call them wise; if you don't, you call them activist. But it doesn't matter; the judges have to decide each case one way or the other. And every time, they are making law.

Answer 5

Honestly??

I think Judges shouldnt make the law but they should continue hearing cases and enforcing the law and the punishments with someone breaking the law.

I think that politicians need to listen to support groups of familys who have lost loved ones with murder, rapes etc and to change the law in parliament to be more fitting to the crime.

Some criminals just get a slap on the wrist and told to behave themselves and have a nice day while they are let out free to offend again.

I think the laws should definitely be changed and that they should be more befitting of the crimes. A human life cannot be brought back but it does make families feel more at ease to know the offender is behind bars and actually receiving some form of punishment for their wrong doings.

Answer 6

Most of the time what happens is that a ruling they gave paved the way for a new law. Basically setting precedence.

Personally I think we've overcomplicated our laws. Stealing is stealing, assault is assault, etc. You hurt someone else you must pay a price. Just adjust for common sense. The problem is all the whiners and garbage in this country who say oh well the law doesn't say this "xxxxxxx"... well I'm gonna end this now before I end up going off on a nine page rant that ends in me talking about how much I hate parades.

Answer 7

Actually, it's a judge's job to make law. Most people forget that.

Both the Australian and US legal systems are derived from the English Common Law. Under this model, the legislature writes prospective general laws, based around expectations and future events, and the courts interpret those laws to specific situations and applications by resolving specific controversies when they arise.

Those rulings that arise out of specific cases and controversies are called common law. Every time a court case is cited for a particular rule, that's an application of the Common Law. All of torts for example, as well as most of American criminal procedure, primarily are based on common law, rather than legislative statute.

The courts do not legislate. They do not impose any prospective general purpose laws, since that is the province of Congress. However, the Supreme Court does interpret the Constitution. And since the beginning, courts have the job of interpreting laws and ruling on specific issues, thus adding to the body of Common Law.

Why do those rulings have any effect on later cases? Because of the doctrines of precedent and "stare decisis" (literally, "let the decision stand"). The rulings of courts have value in later cases to ensure that the same set of facts achieves the same outcome. That's why cases have precedent value. And that's really the only way the legal system can work. Can you imagine what the legal system would be like if every judge was completely free to interpret the laws, without any regard for what previous court decisions had said on the subject?

Judge-made law, common law, is essential to the proper functioning of the legal and legislative system that has served England, Australia and the US for centuries. Without that concept of binding precedent, every court case could come out completely differently, with no consistency. People could not depend on figuring out how a law was going to be interpreted, because judges were not allowed to make their interpretations binding on lower/later courts.

And if appellate decisions were not binding, then judges could ignore prior overrulings, hoping that they would get a different appellate judge who (because precedent is not binding) could happen to agree with them. We'd end up with a system like South Dakota, where laws are passed regardless of the fact that an identical one had been declared illegal, just because a different appellate judge might rule differently. Utter chaos.

Precedent and "stare decisis" are go back centuries to the common law courts of England. They are mentioned as essential in Supreme Court cases dating back to the 1820s. The concepts go back at least to the Code of Justian around 500 AD. And both are still necessary to have a stable functional court system. That doesn't mean rulings cannot change; only that such changes must be for a strong and valid reason, rather than being arbtirary or capricious.

So, it's the job of courts to interpret the laws, and to apply them to specific types of situations. And for stability sake, those decisions must have binding authority on lower courts through precedence. It's also the job of the Supreme Court to interpret the Constitution, which includes applying that interpretation nationally.

The only alternative to having the Supreme Court not create precedent that is binding nationally is to throw away the doctrine of precedent entirely. That means that any court can come up with any interpretation, regardless of how the law was interpreted in the past. If the legislature wanted consistency, then the legislatures would have to modify and update the laws, based upon every interpretation that was decided by the courts. Every law would be constantly in flux, as the legislature tweaked wording and added exceptions into the statutes. So, either legislators would constantly need to update laws to reflect and include every possible later specific interpretation, or we lose any concept of stability and predictability in the legal system.

To avoid this, the English Common Law (and its American and Australian counterparts) allowed Judges to have their interpretations be independently binding, as case precedent. This way, the branch of government which is making the interpretations, the judiciary, is responsible for publishing and organizing its own common law declarations, rather than forcing the legislature to constantly be doing that.

Remove the ability of the courts to make law and you drastically weaken the stability of the entire legal system. The complaint against 'Activist Judges' is not that they are making the rulings that their job requires. It's simply that some people in power don't like the rulings, and this is their way to complain while obscuring the real issue.

Answer 8

judges do not make laws.....their job should be only to interpret the law. It is the people that should, in a democratic society, determine laws

Answer 9

No!, Judges should not make law!
A judges sole purpose is to interpet law!
Just like a police officer's sole purpose is to enforce law!
However, in practice, either on the street or in the court room, interpetations can be bent to the breaking point! (in point of fact) actually making new laws without leave or let from(John Q Public)
by way of interpetation of existing laws! is a common everyday occurance throughout the land!

There are no advantages to judges making laws! (for instance)
do you agree with everyone elses opinion on everything?
Of course you don't!, So why would you allow judges, who are constantly exposed to law breakers and generally bad elements of our society every day they sit in judgement!, to make new laws based on costant exposure to the worst elements of society?

Our system of justice is supposed to assume that you are innocent until (proven guilty)!
However, in practice you are considered guilty until you have (proven your innocence)!
When you step up in front of a judge, even if for the first time in your life!, do you think the judge really see's (YOU)?

He is a product of his enviorment!, and will base his ruling on his experience in that office! (not as he should) based on your record of misdeeds or lack there of!
So you will be judged on the basis of 10,000 miscreants that came before you! (do you really want judges making laws?) who only see the worst of our society on a daily basis?

Answer 10

judges should not make laws.....their job should be only to interpret the law. It is the people that should, in a democratic society, determine laws.