The Courts Cannot Help But Make Law!

From what little I've studied of the law, two things would seem to be true:

1) The courts do, in fact, make law.

2) The courts could not function as courts without making law.

If these things are true, then the second point directly contradicts the naive view of the bimbo talk show hosts I sometimes listen to. I have often heard bimbo talk show hosts say that the courts should not make law, but should only interpret the law. Yet, from what little I've seen of the law myself, it is impossible for me to believe that the view of the bimbo talk show hosts is anything other than naive. I would ask those hosts, "Exactly how, as a practical matter, can a court not make law and still function?"

In "theory", it might be possible for the courts to "only interpret the law", but that sort of "theory" is about useless. In practice, a court can not deal with any new situations, deal with any situations that are in any significant way different from some prior situation, without making law. That's just the way it works in practice. Interpreting the law, in practice, amounts to making the law.

So, does anyone want to explain the bimbo talk show host's position in such a way that it might actually make some sense to say the courts could, if they wanted, only interpret the law rather than make it?

Sunstone said:

In "theory", it might be possible for the courts to "only interpret the law", but that sort of "theory" is about useless. In practice, a court can not deal with any new situations, deal with any situations that are in any significant way different from some prior situation, without making law. That's just the way it works in practice. Interpreting the law, in practice, amounts to making the law.

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Precisely. :clap

I hate to split hairs over definitions, and I have no idea to which bimbo talk show host you are referring, so I voted 'No' in the poll.

IMHO, there is a fine line between interpreting law taking into account the intent of the law makers and 'legislating from the bench'. For example, when Michael Newdow sued to have 'Under God' in the Pledge of Allegiance declared unconstitutional, the judge ignored the primary question of whether or not he had standing to bring the case in the first place. Fortunately, the Appeals Court struck down the ruling that 'Under God' was unconstitutional and instructed the judge to follow the law instead of making it.

I think we see the best example of the courts making law when we examine Free Speech cases. There are forms of speech and media to carry it that few of our Founding Fathers could have imagined, yet the framework of the Constitution and the power of judicial precedents have allowed the courts to address these cases.

In ruling that pornography was material that appealed to the 'prurient' interests YET ruling that it was protected speech AND giving municipalities the power to regulate its public display the courts did in a de facto sense MAKE the law.

BTW..I don't even watch talk shows, so I probably couldn't make a list of possible candidates.

Sunstone said:

From what little I've studied of the law, two things would seem to be true:

1) The courts do, in fact, make law.

2) The courts could not function as courts without making law.

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Sure they can... and they don't exactly make new law...

Sunstone said:

If these things are true, then the second point directly contradicts the naive view of the bimbo talk show hosts I sometimes listen to. I have often heard bimbo talk show hosts say that the courts should not make law, but should only interpret the law. Yet, from what little I've seen of the law myself, it is impossible for me to believe that the view of the bimbo talk show hosts is anything other than naive. I would ask those hosts, "Exactly how, as a practical matter, can a court not make law and still function?"

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Exactly how can't they function?

Sunstone said:

In "theory", it might be possible for the courts to "only interpret the law", but that sort of "theory" is about useless. In practice, a court can not deal with any new situations, deal with any situations that are in any significant way different from some prior situation, without making law. That's just the way it works in practice. Interpreting the law, in practice, amounts to making the law.

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Er... deal with new situations? The courts can declare something unconstitutional and in turn abolish a law, but if murder was not illegal you couldn't bring someone up on charges in court. Well not criminal charges =) You could probably sue them still.

The idea is if a judge makes a ruling, unless the ruling is challenged that ruling can become a standard for interpretation of that law. So with the murder analogy, lets say someone was killed by another and it was illegal to hurt another person. The judge could rule that the law does mean that it is then illegal to murder someone, because you cannot murder someone without hurting them. Then a case can come up later that challenges that standing saying that you can die without being hurt... A judge could very well, in this world ive created, rule that some murders do not hurt others and in that case it isn't illegal. You see, the law hasn't changed but the judges interpretation of it has.

You see the same thing in religion... New standards keep coming out from the bible but the bible doesn't really change; peoples interpretations of it change.

CaptainXeroid said:

In ruling that pornography was material that appealed to the 'prurient' interests YET ruling that it was protected speech AND giving municipalities the power to regulate its public display the courts did in a de facto sense MAKE the law.

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This ruling was based on multiple laws... If it was simply a case of free speech pornography would be allowed out in the open...

Sunstone said:

From what little I've studied of the law, two things would seem to be true:

1) The courts do, in fact, make law.

2) The courts could not function as courts without making law.

If these things are true, then the second point directly contradicts the naive view of the bimbo talk show hosts I sometimes listen to. I have often heard bimbo talk show hosts say that the courts should not make law, but should only interpret the law. Yet, from what little I've seen of the law myself, it is impossible for me to believe that the view of the bimbo talk show hosts is anything other than naive. I would ask those hosts, "Exactly how, as a practical matter, can a court not make law and still function?"

In "theory", it might be possible for the courts to "only interpret the law", but that sort of "theory" is about useless. In practice, a court can not deal with any new situations, deal with any situations that are in any significant way different from some prior situation, without making law. That's just the way it works in practice. Interpreting the law, in practice, amounts to making the law.

So, does anyone want to explain the bimbo talk show host's position in such a way that it might actually make some sense to say the courts could, if they wanted, only interpret the law rather than make it?

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I disagree. We can make very important distinctions between the law and its interpretation. The interpretation of the law, for example, is not subject to the same type of democratic process as the writing of laws and is more easily changed and amended precisely because the interpretation of the law stands as precedence and not as law. While judges prefer to set presedence than to change it, presedence is a standing interpretation and not a law, and is not the product of democratic process.

The argument is centered on judicial activism versus judicial restraint, with one of the arguments centered on defining and setting perameters for the popular phrase "legislate from the bench."

Ryan said:

Exactly how can't they function?

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I think the more case law you read, the more obvious it becomes both that the courts routinely make new law and that they could not function as courts without making new law.

Let's suppose, for the sake of illustration, that a bimbo talk show host becomes a judge and decides to carry through on his belief that the courts should not make new law. What does the bimbo judge do when he's confronted with a case in which there is no exact precedent? Does he decide that the court cannot rule on the case because no court has ever ruled on precisely the same case before? Well, if he really wants to uphold his conviction that the courts should not make law, then that's precisely what he must do. He must refuse to rule on the new case because it is outside any existing law and any ruling he makes would in effect be new law.

It's much, much easier to understand this point if you have read a bit of case law.

Sunstone said:

Let's suppose, for the sake of illustration, that a bimbo talk show host becomes a judge and decides to carry through on his belief that the courts should not make new law. What does the bimbo judge do when he's confronted with a case in which there is no exact precedent? Does he decide that the court cannot rule on the case because no court has ever ruled on precisely the same case before? Well, if he really wants to uphold his conviction that the courts should not make law, then that's precisely what he must do. He must refuse to rule on the new case because it is outside any existing law and any ruling he makes would in effect be new law.

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I don't exactly get what you are saying here... If there is absolutely no law set against the actions of the person brought before the judge, then yes the person must be set free. If there is a law set, the judge is to use both the law and the interpretations of the law from other judges in order to reach his or her ruling. Can you give an example with a link to show a case where you believe the judge made a new law and did not just give an interpretation of a law that was already in place?

If this is true, can we really distinguish between the Legislative and Judicial branches of government?
Shouldn't the courts at least consult with the legislature before acting in a way that could be construed as "making law?"
By definition, if courts "make law," they are overreaching their power. Maybe someone should sue the courts! Oh... :-I

Ryan2065 said:

I don't exactly get what you are saying here... If there is absolutely no law set against the actions of the person brought before the judge, then yes the person must be set free. If there is a law set, the judge is to use both the law and the interpretations of the law from other judges in order to reach his or her ruling. Can you give an example with a link to show a case where you believe the judge made a new law and did not just give an interpretation of a law that was already in place?

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Check out Brown v. Board of Education. Before the case, there was no law saying that schools had to be integrated. After the cae, the law (created by the Supreme Court) was that schools had to be integrated.

Sunstone said:

Check out Brown v. Board of Education. Before the case, there was no law saying that schools had to be integrated. After the cae, the law (created by the Supreme Court) was that schools had to be integrated.

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That court case was about a black girl who wanted to go to a white school that was 7 blocks away and was instead forced to go to a black school a mile away through a railroad switchyard. The ruling was that it was against the 14th Amendment to keep schools segregated because then black children would be at a disadvantage, so therefore all white schools were forced to allow black children in... While there was no law that specifically stated schools had to be integrated, the 14th amendment was there.


There cannot be a law for every single case that will ever come up in court. Therefore lawmakers make general laws that aid the courts in their decisions.

Ryan2065 said:

While there was no law that specifically stated schools had to be integrated, the 14th amendment was there.

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Actually, there was law in place specifically saying public facilities did not have to be integrated: the prior case authority Plessy v. Ferguson. Brown v. Board of Education effectively overruled the "separate but equal" law of Plessy for public education and the scope was gradually broadened on similar policy rationale to other public services by subsequent courts. And now it has been even further broadened by the U.S. Congress through several statutes. It was a question of interpreting the 14th Amendment. The Plessy court found "separate but equal" did not offend "Equal Protection" while the Brown court found that, as applied in public education, it did.

[FONT=Verdana, Arial, Helvetica, sans-serif]Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.[/FONT]
[FONT=Verdana, Arial, Helvetica, sans-serif]
We conclude that, in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.[/FONT]

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the doppleganger

As to the OP, courts that use a "common law" legal system (like those in the U.S. to a large extent) are not only allowed but expected to make new laws whenever they encounter a case that cannot be resolved by the existing authorities of the following (in this order): Constitution (and interpretive case law); Statutes and regulations (and interpretive case law); common law rules (as derived directly from case law). If a case falls through the cracks in the broad strokes of the Constitution, it might be resolved by reference to a statute or regulation. If if falls through the cracks there, it might be resolved by comparison to existing common law precedent. And if none of the three apply, the courts decide what the common law should be for that case and ostensibly for future cases like it.

What's more, they can change their minds in future cases and overrule prior common law decisions (and decisions interpreting statutes, regulations and the Constitution), though they should do so very, very hesitantly and only for very good reasons - as the Supreme Court did in Brown.

the doppleganger

doppleganger said:

As to the OP, courts that use a "common law" legal system (like those in the U.S. to a large extent) are not only allowed but expected to make new laws whenever they encounter a case that cannot be resolved by the existing authorities of the following (in this order): Constitution (and interpretive case law); Statutes and regulations (and interpretive case law); common law rules (as derived directly from case law). If a case falls through the cracks in the broad strokes of the Constitution, it might be resolved by reference to a statute or regulation. If if falls through the cracks there, it might be resolved by comparison to existing common law precedent. And if none of the three apply, the courts decide what the common law should be for that case and ostensibly for future cases like it.

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So if say there was no law that remotely said "you have to pay taxes" the court system could randomly rule on a case saying "Oh, by the way, you gotta pay your taxes, its now illegal." If the judical system was going around "making new laws" then any case they ruled on, the ruling would not stand. If you commit a crime before the law is in place then you can not be prosecuted for that crime.

Ryan2065 said:

So if say there was no law that remotely said "you have to pay taxes" the court system could randomly rule on a case saying "Oh, by the way, you gotta pay your taxes, its now illegal." If the judical system was going around "making new laws" then any case they ruled on, the ruling would not stand. If you commit a crime before the law is in place then you can not be prosecuted for that crime.

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Both of your examples would be unconstitutional, so those would be things the courts couldn't do for that reason. A court arbitrarily deciding to levy taxes would likely violate the Separation of Powers doctrines. And a court entering a judgment against you for an act that wasn't a crime when you committed it would be in violation of the Ex Post Facto clause of the Constitution. Also, generally courts cannot create new substantive criminal laws, that is a power delegated to the legislature as well. Though the courts have authority to interpret and apply existing criminal statutes.

the doppleganger

Sunstone said:

From what little I've studied of the law, two things would seem to be true:

1) The courts do, in fact, make law.

2) The courts could not function as courts without making law.

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The courts cannot "make law" in the sense that of their own volition they make things out of whole cloth.

There may be a law that is wholly unconstitutional, but until a case is brought in the courts, the courts have no power to rule the law.

OTOH, it's impossible for a court to make a rulings without in some sense "making law." By making a ruling like Brown v. Board of Education, that in effect "makes a law" saying that segregation in schools is illegal. But that is a rather loose definition of "making law" I would submit.

As for bimbo talk show hosts:

Judicial activism: n. Any court decision I do not like.

The above is, from what I have observed, an accurate definition of what they call judicial activism.

Wiki has a nice (though very general) introduction to the concept of "common law" as it is used in the United States. Some laws come from Constitutions, some laws come from legislatures and some laws come from courts.

If you want concrete examples of new laws created where none existed before, the American civil justice system is full of them. The "tort" law of every state (except Louisiana, which follows the Napoleonic "Civil Code" model) primarily consists of a set of laws derived from court opinions in prior cases governing civil liaibility for actions between private citizens. The legislature in each state can pass regulations that override the court created common law, but in the absence of a statute, American "tort" law is almost entirely created by the courts.


the doppleganger