in what ways do the courts make laws?

Answer 1

The courts do not make laws. The courts enforce the laws. On a national level the laws are made by the House of Representatives and the Senate. The Judiciary is separate from the Legislative branch of government.

Answer 2

They don't. They only interpret the laws that legislatures make. If you're referring to the current catch phrase about legislating from the bench, people say that because a law is passed which is unconstitutional and the court overturns it. When they overturn the law, they say what the State must do to right the wrong. That sets precedent for future courts, which is a de facto law (as opposed to a real one). These decisions can be nullified by writing the law again and taking out the unconstitutional parts (or writing it correctly in the first place).

Answer 3

AH! a civics question! OK, here's the answer to give your underpaid teacher: courts interpret the law that's all they are allowed to do, but some courts, particularly the appellate courts and specifically the federal appellate courts issue rulings that make it impossible to do otherwise, like the Miranda rights in criminal law, or like Rowe versus wade on abortion.

Or they can just keep striking down laws until the legislatures get it right, like state's rights in the early 1800's or like civil rights in the 1960's (which they still haven't got right).

Call me and tell me if you get an A or A+.


PS The guy up above who said law of precedents probably really meant the "principle of stare decisis"

Answer 4

Most people don't realize that Common Law systems are different than Civil Law systems.

In Common Law countries (England, US, Australia) the courts interpret the laws, but those interpretations become binding as legal precedent. This precedent (also called judge-made law or common law) keeps the interpretations consistent from case to case, unlike Civil Law which doesn't have binding interpretations.

It's amusing to me how people argue that judge's shouldn't make law, without ever realizing that the vast majority of law comes from the courts and not the legislatures. Almost all of contract law, tort law, criminal and civil defenses, much of family law -- all of these exist solely as the result of common law court holdings.

If we tried to eliminate all the court-made law, the legislatures would need to pass ten times as many laws, just to fill the gaps.

Some common examples of court-made law: self-defense, citizens arrest, necessity, almost all torts (trespass, assault), most of contract law (anything related to services is not covered by the UCC), Miranda warnings, the exclusionary rule for illegally obtained evidence, obscenity regulations (being not protected speech), the incitement exceptions (again, what is not protected speech). And on and on and on. Most of what people think of as the law was crafted by judges and courts, not by the legislature.


People keep complaining about activists judges. But what they're really complaining about is judicial decisions they don't personally like.

Answer 5

As a general rule, courts cannot make laws. However, the courts can make laws by deciding cases and the rulings in the said cases are adopted in subsequent cases with similar issues. This principle is called the law of precedents.

Answer 6

Judicial review changed the way the courts sit in the balance of power and in the country's checks and balances. The courts now interpret whether a law is OK with the constitution therefore viable. This all started with the case of Marbury v. Madison. now the Judiciary is the most powerful branch of government

Answer 7

Courts do not make laws. Laws are made by the legislative branch of your state. The only thing courts do is dictate the law as it is given to them in the order to prosecute criminal offenders.

Answer 8

Courts make laws "between the gaps."

"If you ask how [the judge] is to know when one interest outweighs another, I can only answer that he must get his knowledge just as a legislator gets it, from experience and study and reflection; in brief, from life itself. Here indeed is the point of contact between the legislator's work and his ... Each is indeed legislating within the limits of his competence. No doubt the limits of the judge are narrower. He legislates only between the gaps.

"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in the social life.' " (Benjamin Cardozo, "The Nature of the Judicial Process," 1921.)

Answer 9

Technically, they don't.....BUT

The way a certain ruling comes down - which interprets the law - that can have an effect on how that law is enforced