Rights of Judges to Make the Laws

Is it possible that the question of whether or not judges should make laws has been discussed for two centuries? The idea of "law" was thought to be based on nature, reason, or divine law and sometimes a combination of all three.

Originally, judges were not to make the law, but to derive the rightness of justice of the law. The role of the judges was to determine and apply the found rules or laws. After around 1800, judges began to think that they could transform the law to the situation. They began to try to direct social and economic development through the law. About the turn of the century, the American born philosophy of Darwinism began. Oliver Wendell Holmes Jr., was a great influence with his concept of the law, which stated that the law was to help bring out a desirable social end.

Someone has said that judges should not make law, just interpret and make application of the law where it applies. Some rights, however, seem to be in conflict with each other. What are we to do? Judges should always be free to carry out their role with impartiality, fairness, credibility, and according to their conscience. Judges should not show favoritism, not be bias, partial or prejudice.

Two examples follow showing where judges have established a law. When the Supreme Court has been unable to establish a law, the judges have stepped up and make certain decisions, such as the Roe v. Wade case with the decision of abortion. Then in 1954, with the Brown v. Board of Education, about segregation, the judges established a precedence (law).