Judicial Decisions: Law Or Not?

Judicial decisions are one of the most important sources of legal authority in common law systems. Judges make determinations of parties' rights and obligations based on facts and law, and these decisions can become binding precedent. However, the question of whether judges make law is a philosophical one, raising issues of fairness and democratic accountability. In the past, the declaratory theory of law held that judges did not make law but merely declared what was already known to be the law. This theory has been challenged by legal philosophers such as Jeremy Bentham, who compared the common law to 'b*start law'.

Judges interpret the law

Judicial interpretation refers to how a judge interprets laws. Judges can interpret laws in different ways, and this can have a political aspect, especially in common law jurisdictions such as the United States, Australia, and Canada, where supreme courts can overturn laws made by their legislatures via judicial review.

There are several methods of judicial interpretation:

• Literalism: This approach involves reading the literal text of the law or Constitution and following it without considering a judge's predisposition. However, this method can lead to seemingly inconsistent outcomes and struggles with the ambiguity and lack of precision in the language of legal texts.
• Original Intent: Judges try to interpret the intent or motives of the framers of a statute or constitution. This approach can be challenging due to sparse documentation and the difficulty of determining whose intentions to follow.
• Doctrinal Approach: Judges follow precedent and decide new cases based on previous rulings with similar facts. This approach provides stability and predictability to the law but may not always be applicable to new or unique circumstances.
• Competing Interests (Prudential): Judges balance competing interests or rights, considering the most sensible and practical outcome for the specific case. While this method allows for case-by-case consideration, it may result in inconsistent rulings and relies heavily on the subjective opinion of the judge.
• Structuralism: Judges interpret a particular constitutional principle in the context of the larger constitutional document, considering the relationships within the Constitution rather than specific provisions. This abstract approach can lead to multiple interpretations.

In addition to these methods, judges may also refer to frequently used vocabulary and standard phrases in legal documents, interpreting them within their specific legal context.

The process of judicial interpretation is crucial, especially in common law systems, where judges play a significant role in shaping the law. However, the concern arises that judges, unlike elected politicians, are not democratically accountable, raising questions about the fairness of their law-making power.

Judges make rulings

A judge's ruling is a determination of the rights and obligations of the parties involved in a case, based on the facts and the law. In other words, it is a judgment on the legal issues of the case. Judges make rulings by applying the law to the facts of a case and providing a legal interpretation.

Judicial decisions are a significant source of legal authority in common law systems. Even statutes must be interpreted in conjunction with case law, which establishes the correct application of legislation. Judges follow the doctrine of precedent, or stare decisis ("let the decision stand"), to ensure consistency in the law and that similar cases are treated alike. This means that previous decisions made by judges, known as case law or precedent, guide future decisions.

In the past, the declaratory theory of law was used to justify judicial decision-making. This theory posits that judges do not create new laws but merely declare what the law already is. However, critics argue that judges do make law, particularly when there is no clear rule to follow, and that this raises questions about fairness and democratic accountability.

The process of a judge making a ruling typically involves delivering a court's order and providing a written explanation of the decision. This explanation includes a summary of the facts, a discussion of relevant laws, the court's reasoning for how the law applies to the case, and any orders or instructions for the parties involved. These orders can range from procedural matters to substantive issues, such as whether a case will be dismissed.

Judges are not democratically accountable

In the US, federal judges are also appointed and serve life terms. They are protected from the influence of other branches of government and from shifts in popular opinion. They are also protected from personal consequences, such as being fired or having their salaries lowered. This is known as judicial independence and is considered essential to the rule of law.

However, there are some checks on the power of judges. In the US, for example, judges can be impeached and removed from office if found guilty of an impeachable offense. They are also bound by a Code of Conduct, which includes ethical principles such as recusing themselves from cases where they may have a personal bias.

Despite these safeguards, the fact remains that judges are not directly accountable to the people and this can be seen as a problem when it comes to law-making.

Judges follow precedent

Vertical stare decisis, which holds that the decisions of higher courts take precedence over those of lower courts, is deeply entrenched in American law. This is what makes the Supreme Court "supreme". On the other hand, horizontal stare decisis suggests that prior decisions made by courts at the same appellate level should serve as precedent for similar cases.

While judges generally follow precedent, there are times when they may choose not to, particularly if following precedent may lead to an unjust outcome. In such cases, judges may provide reasons or legal nuances to justify their departure from precedent or even overturn prior rulings. This is especially true when societal changes, such as new technologies or demographic shifts, cause interpretations of prior decisions to become outdated or unsupported.

For example, in Brown v. Board of Education (1954), the Supreme Court overturned the precedent set in Plessy v. Ferguson (1893), which held that "separate but equal" public accommodations did not violate the Constitution. Over time, the history of segregation in America proved that "separate" rarely resulted in "equal", and the Supreme Court recognised this and decided that racially segregated schools did, in fact, violate the Constitution.

While judges are not democratically accountable in the same way that elected politicians are, they are bound by the decisions of higher courts and must provide justifications for their rulings, particularly when they depart from precedent.

Judges' decisions are published

Transparency and accountability are crucial in upholding the integrity of the justice system. By publishing judges' decisions, the public can scrutinize the reasoning behind judicial rulings, ensuring that judges are adhering to legal principles, considering relevant facts and evidence, and interpreting and applying the law appropriately. This transparency helps hold judges accountable for their decisions and promotes public trust in the judiciary.

Published decisions also serve as precedents for future cases, guiding lower courts, lawyers, and other judges in similar situations. They provide clarity on how the law should be interpreted and applied, helping to ensure consistency and predictability in the legal system. Judges can refer to past decisions to understand how legal principles have been applied in similar cases, aiding them in making informed and consistent rulings.

Additionally, publishing judges' decisions contributes to the development of case law, which is particularly significant in common law jurisdictions. Case law refers to the use of past judicial decisions to determine how statutes or other laws should be applied in similar situations. By publishing decisions, judges create a body of case law that can be referenced and relied upon in future cases, shaping the evolution of legal principles and doctrines.

Furthermore, making judges' decisions public allows for academic analysis and commentary, fostering a deeper understanding of the law and encouraging critical discourse on legal issues. Legal scholars and researchers can examine the rulings, interpretations, and reasoning presented in published decisions, contributing to the advancement of legal theory and practice.

Overall, the publication of judges' decisions is essential for maintaining transparency, providing guidance to the legal community and the public, and shaping the development of case law and legal precedent. It helps ensure that the judiciary operates within a framework of accountability, consistency, and reasoned decision-making.

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