do judges legislate?

Question

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Answer 1

They're not supposed to. Judges are supposed to interpret and enforce the laws that legislators (senators, representatives, on state & federal level) create. Sometimes, some Judges overstep they're bounds in interpreting law to encompass other situations where the law is either unclear, or non existant. This is commonly known as 'legislating from the bench'.

Answer 2

There are three main branches of the law:

1) Statute
2) Common law
3) Case law.

Actual legislation is statute. Bills come before the Houses of Parliament and are passed into Acts of law. Hence Parliament legislates.

Many of our laws are in fact common law, left over from mediaeval English legal codes, and they passed into law without the parliamentary process.

Where judges become involved is in case law. This means that they don't create the legislation, *but* they help define its interpretation. When a new piece of legislation comes onto the statute book, all kinds of legal tests and challenges will occur in the Courts as the law is tested for the first time. Prosecution and defence barristers will argue about whether certain circumstances can be applied under the new law, and the Judge will then have to make a ruling. Sometimes initial rulings are challenged and then the matter can be taken to the High Court. Once a ruling has been made and there is some sort of precedent about how the particular law ought to be applied, it has passed into case law. Lawyers have books dealing with such matters of interpretation so that they can cite specific cases and the legal precedence set by judicial decision when they are asked to deal with a similar situation.

Answer 3

They should not. If they did, they'd just be an extension of the legislative branch. The founding fathers outlined executive, legislative, and judicial powers in the Constitution. Their purpose was to create a check and balance between our levels of government. Not to open old wounds, but a case in point was during the Terri Schiavo case. As you mayknow, the legislative branch of Congress attempted to pass a law specifically to save her life. The state and federal judicial branch ruled it unconstitutional. The Supreme Court refused to consider an appeal by the Schindler's. Many members of the legislative branch called for an impeachment of these judges, some even condoned violence against them. Two points I should make here. First this law was heavily supported by a Republican Congress and the President. The Supreme Court is widely thought to lean conservative, supposedly a benefit to conservatives. The majority of judges in this case were elected by Republicans. Secondly, in defying the Congress and President, the judges upheld the checks and balances in refusing to rubber stamp legislation. The founding fathers were very leary of the "tyranny of the majority." Just because the majority believes in one thing, doesn't mean that they are also just. Without these checks and balances, every Muslim, gay or lesbian, minority, or anyone who is considered to be in the minority in their opinion or lifestyle would be run out of the country. It is necessary that judges use their impartiality in deciding cases. If not, there is an impeachment process in place that can boot them from the bench.

Answer 4

They're not SUPPOSED to...but because judges are often politically motived people, they often do.
For example:
The US Constitution clearly states that no person shall be deprived of their property without due process. But a conservative congress passed a law (under the excuse of fighting against drugs) that allowed law officers to confiscate cash...even without going through any due process proceedings. The courts should have declared this statute unconstitutional and threw it out...you cannot change the Constitution just by making a law...it must be changed by amendment. But many conservative judges figured...well...what the hell...these people are drug dealers, after all...so we're going to let it stand. By doing so, the courts were "legislating" from the bench...i.e.: by not tossing out a clearly unconstitional law (which was their job that they had sworn to do), they in effect "made" law.
As a general rule, liberal judges have done far more of this legislating by judicial fiat than conservatives...often because...though the law "technically" says one thing...they think it OUGHT to say something else. So we get rulings that are in direct opposition to what the law clearly states.
I'm not a fan of George Bush....but one thing I'll (reluctantly) give him credit for doing right is appointing two Supreme Court justices who at least promise that they will interpret the law as written...not as someone might "wish" it were.
Hell of a shame when politics invades the law....

Answer 5

please note I'm on about the UK........they are not supposed too... and by definition they are the judiciary, 'they are there to apply the law passed by the legislature (parliament) to the facts and pass judgement on the case to enforce the rules that govern our country.....

In a democracy the three power that is the executive, legislative and judiciary should be kept separate without interference from either of the two other bodies............ does this happen in practise?

well to thoughts on the subject, the first view is that there should be a system of checks and balances to keep one another in check,..... this is the case in the UK to some extent.

the alternate view is that the judiciary although they aren't supposed to do move away from the prescribed limits and do end up chaining the law,..... they set 'precedent' that others follow .... a good example of a judge that changed the law Lord Denning ....what a character he was...! if your doing a law degree then you'll know about or no doubt hear of this chappie.

so in answering your question.... yes they do...... it's one of the main foundations of the UK's constitution (unwritten unlike USA) ...called common law.... judge made law!

Answer 6

No. Legislation = making the law. That is done, in democracies, by elected politicians.
Judges interpret what the law means in practice.

For example, if the legislators were to write a law which says "It is not permitted to play music unreasonably loud" then the judges may be left to interpret what "unreasonably loud" means.

Answer 7

No. Senators and state reps make legislation and the courts interpret the legislation to decide who is right and who is wrong. It is a checks and balance system in the US.

Answer 8

No - the legislature i.e. the government legislate - create the laws.
Judges interpret them when dealing with cases before them.

Hope this helps.

Answer 9

No but they interpret the legislation

Answer 10

No. They interpret. For example, the Constitution bans cruel and unusual punishment. That's the law. But what exactly does it mean? Is whipping someone cruel? Electrocuting them? Judges have to debate and decide what exactly qualifies as being cruel. If they decide that hanging someone is cruel, it then becomes illegal to hang someone.