Should Judges Make Law

Judges «must interpret the law, not make the law,» Justice Brett Kavanaugh noted as he accepted Donald Trump`s nomination to fill Justice Anthony Kennedy`s seat on the Supreme Court. This oft-repeated assertion is an invention of conservatives who seek to criticize and restrict Supreme Court decisions strengthening the law. But the assertion that judges should not legislate is based on a fundamental misunderstanding of the role of judges in our common law tradition. The Constitution must be interpreted and some parts of it, for example Articles 14, 19 and 21, are also understood in moral terms such as fairness, reason and equality. It is common for public servants (judges) to take moral considerations into account when interpreting these provisions and thereby determine what is to be considered law. This reasoning involves the delicate question of identifying and weighing various considerations. But is this incompatible with Hart`s theory of the rule of recognition? It seems to me that this is not the case. Of course, the recognition rule, which is a touchstone for the validity of legislation, does not dictate or control its «content». At the same time, however, this does not take away the possibility of using tests that are not simply ancestry tests.

It is repeated that just because a qualification does not have to occur because of the «content» in Hart`s theory does not mean that such a qualification cannot necessarily take place or does not occur when judges make moral considerations. If we turn now to the doctrine of judicial discretion. Dworkin seems to suggest not only that principles eliminate some indeterminacy in law, but also eliminate indeterminacy, because he completely rejects the idea of judicial discretion. He seems to assume that anyone who accepts the idea of judicial discretion cannot at all acknowledge the existence of legal principles, or must find that principles cannot eliminate uncertainties because they must be weighed against each other. But can his conclusion that principles eliminate all uncertainties be valid? The author is of the opinion that the answer can only be no. In order to eliminate all uncertainties in the law, the principles must cover all cases that may arise. In addition, they must have determinable weights. Third, the balancing process, in which principles are weighed against each other, must never give equal weight to conflicting principles on both sides of a legal issue.

Only if all these conditions are met can we tolerate the complete rejection of judicial discretion. There is no reason why one cannot recognize the existence of legal principles without believing that these principles eliminate any vagueness and thus any reason to exercise judicial discretion. One last point on Dworkin`s critique of positivism: let`s say his judge Hercules faces a difficult contract case. Now suppose that there are many well-established rules regarding consideration in the contract: similar to Indian contract law, according to which commitments are not binding, except in exceptional cases, unless they are supported by a counterparty. Hercules will now have to construct a theory of contracts, that is, a justification of the established rules of contract law, which accounts for the conception of justice on which (according to Hercules) contract law rests. Now suppose that Hercules adopts the personal and «moral» view that all promises must be regarded as binding, regardless of consideration. That no one should be allowed to violate a promise simply because such a promise has not been backed up by consideration. But can the theory of Hercules treat as errors all legal rules that say that promises are not binding without consideration? The answer can only be no, because according to Dworkin, the theory of Hercules must provide a justification for the existing rules for black letters. It may treat some of them as errors, but it cannot reject all the rules and will therefore have to condition the binding nature of contracts on the existence of something in return. Is there not, then, a difference between Hercules` conception of what morality requires and that of the law? Does it not follow that Dworkin`s theory is entirely consistent with the «separation of law and morality» or the distinction between what the law «is» and what it «should be,» as positivists claim? What has been pointed out by the author is problematic for Dworkin, but does not lead to his conclusion that Dworkin`s theory is compatible with the «separation of law and morality». The point of the gap between Dworkin and positivists is whether there are necessary links between law and morality, whether law can be law if it is immoral or amoral. What the scholarly author pointed out, and what creates serious problems for Dworkin, is that it can be difficult for Hercules to determine what the law is in a particular situation because there can be a variety of views on what the moral response is in that situation.

This is because, according to Dworkin, law is law only if it is morally legitimate, but if there are many moral answers and some are in direct conflict with each other, how are we supposed to know what is morally legitimate (and therefore the law)? But that doesn`t make Dworkin a positivist. What has been highlighted by the author raises non-trivial philosophical questions that Dworkin must face, as he must take a stand on the ontological nature of moral truth; and it seems that Dworkin`s theory of what law is can only work if moral truth is objective. But the ontological nature of moral truth is one of the most controversial and unresolved questions in philosophy. The Hart-Dworkin debate that Raz takes with him about the judicial role during the judicial system boils down to almost the same point where judges in the legal world have ruled with some discretion, even in difficult cases. However, when I approached the real situation in terms of jurisprudence, I found that it is not always possible to explain justice. Therefore, common ground is needed to define the role of the judge. I conclude this article by noting that judges used to explain laws by doing so while discovering them in the legal world. In a new «Court Shorts» video for the judiciary, nine federal judges explain how fair and consistent adherence to the law protects our rights and well-being in everyday situations such as buying a breakfast sandwich, reading mail and investing in the stock market.

The genius of the common law system is that it provides both stability and flexibility as the law evolves to adapt to changing circumstances. With regard to constitutional controversies, the process allows for the further development and adaptation of our basic document. Kavanaugh`s assertion that judges should «interpret» but not «make laws» is a crude and false attempt to limit this notion of the Constitution as a living document. Indeed, judges try to capture the intention of the authors and the original understanding of the constitutional text as much as possible. However, the original understanding cannot always be regained. In addition, the full legal analysis must go beyond the text and beyond an original understanding. It must not ignore the policy of the text and the application of the principles deriving from it. Federal judges provide insight into their thinking on the separation of powers and describe how healthy tensions between branches have a stabilizing effect on democracy. Because the U.S.

legal system favors a common law system, higher court decisions are binding on lower courts that deal with cases with similar facts and issues. The concept of judicial law works by using the previous decisions of other judges in cases similar to those under investigation. The question, therefore, is not whether or not judges are involved in the legislative process, but whether they interpret the law correctly so that justice can be done.