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What is a Judge-Made Law?

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  • Written By: Mary McMahon
  • Edited By: Kristen Osborne
  • Last Modified Date: 17 November 2016
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A judge-made law is a law rooted in a judiciary decision, not an act of legislation made by lawmakers or a regulation created by a government agency with the legal authority to do so. The collective body of judge-made laws in a nation is also known as case law. Many nations allow judges to set legal precedents when making high court decisions, adding to the body of law in a nation and providing new interpretation of existing laws.

Lower courts do not have the authority to make judge-made law. Only judges operating in appellate and other high courts are able to set legal precedents by either changing the way the courts interpret a law, or offering a new interpretation that expands an existing law. Judges cannot invent laws out of whole cloth; they must be able to provide clear legal rationales for their decisions, with supporting information in the form of decisions in single cases.

After a judge-made law is created, other courts are bound to uphold the law, or to support challenges to it. As other courts abide by the law, they reinforce it and create a body of case law to support the original judge's interpretation of a legal situation. If a challenge is filed in another court, the other judge can choose to overturn the decision, negating the judge-made law, or uphold it, leaving the law in place.

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Case law provides an important mechanism for allowing the legal system to evolve along with society, as judges confront cases legislators might not have foreseen, or face challenges to acts of legislation that appear to have dubious merits. Judge-made law may expand the authority of a given law, as seen when a judge decides that an existing law covers a situation, if indirectly. It can also challenge, and sometimes reverse, the interpretation of existing legislation.

When a judge prepares an opinion she knows will set a precedent, she musters up as much supporting information as possible to prop up the decision and make it clear that though the interpretation is novel, the logic behind it is sound. This can include excerpts from opinions written by other judges, discussions of the intent behind given legislation, and larger overviews of social norms and beliefs. In the United States, for example, a judge may use the Bill of Rights to support a case, arguing that he would violate the rights in this document by interpreting a case in any other way.

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stl156
Post 4

I find it interesting that due to the way the legal system is set up it is possible for the judges to in essence create the law and how it is interpreted for other judges to follow.

What I also find interesting is how one judge could set the course for everyone else to follow and that it is all based on the judicial review of that one particular judge.

My question is what happens if the judge makes some really weird ruling that ends up affecting how judges must interpret those types of cases?

I know instances like this have happened and I am just wondering how cases like this are dealt with and if they can change precedents like this?

matthewc23
Post 3

@jmc88 - That is true and those cases do occur even today as the Supreme Court once in awhile sees an issue come up that they realize will set a judicial precedent.

When this occurs the case will be pushed through a lower court and if the Supreme Court really wants to review for legal sakes, then they will immediately review the case with full intention of setting a judicial precedent and in essence create a judge made law.

I have heard cases of this happening nowadays and although I cannot think of any off of the top of my head, I know they do occur nowadays and it is not unusual a couple of times a year to hear of a case in the Supreme Court happening like this.

jmc88
Post 2

@TreeMan - The idea of judge made law really concerns how the judge interprets his or her decision and how if this is a case of judicial precedent the reasoning behind the decision.

I know that sometimes there are test cases created which are used to settle a long standing legal question that has yet to be properly addressed and the judge has a large bearing on this case because it is known it will set a judicial precedent.

The Scopes monkey trial is such a case as it was set up by both sides as a test case in order to establish guidelines for future cases involving religious based arguments.

The judge in this case made sure that he was

deliberate with everything he did to make sure to set a precedent for how the judge should handle the case and how to interpret how the law should view a case like that.

Although this was a jury based decision the judge did play a role just by leading the court and that could be another part of this process.

TreeMan
Post 1

It seems to me that judges do have quite a bit of power in the legal world and that it does not only come down to how they conduct their courts.

I have heard that judges could set legal precedents, at least as far as legal interpretation of the law goes, but I always figured that this was along the lines of how the law was interpreted and not necessarily a change in the law.

I have heard that judges in early instances in American history did change the law in a way and basically create their own laws, through judicial precedent, but nowadays I do not see how this is possible for a judge to really do.

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