NCJ Number
114791
Journal
Australian Law Journal Volume: 62 Issue: 2 Dated: (February 1988) Pages: 116-127
Date Published
1988
Length
12 pages
Annotation
Judicial law-making has the advantages of being more flexible, concrete, and adaptable than law-making by the legislature.
Abstract
Judges are less vulnerable to demagogy and local or pressure group values and priorities, and courts have a scholarly insulation and a knowledge of actual cases. Judges as lawmakers serve as interpreters, legislate only in hard cases, and do so incrementally. In their decisionmaking, judges apply rules, standards, principles, conceptions, and doctrines in an interpretive role. When such authoritative sources do not apply, would offend the community's sense of justice, or are contrary to public interest or policy, judges search for new rules and refer to societal interests beyond those of the immediate litigants. The nature of judge-made common law, the forms of adjudication, and procedural requirements place limitations on judicial law-making that do not apply to parliamentary law-making. In addition, judicial law-making is influenced by the need for community acceptance and acceptance by other judges, current and future. Judicial law-making provides a complement to legislative efforts in a democracy, protects individuals and groups denied real access to the political process, and usually is made cautiously and on the basis of relevant information. 61 footnotes.