Rights of Judges To Make Laws

In the separation of power set up in the United States Constitution, judges are assigned the task of judging the law. As some rulings of the U.S. Supreme Court have been made, some people have been concerned that the Court is making laws, which does not appear to be part of its job description. How the Court is able to make such rulings is found in an examination of British and American law.

The legal system used in the United States is inherited from England. The power to determine the law was taken from King John in the Magna Carta in 1215, and the power was moved to a small group of only five judges in the common law court. In the view of many people, these men became just as tyrannical as King John, so the office of Lord Chancellor was established. He had the power to make decisions, which were seen at the time to be fairer than the judgments of the common law court. Eventually, the two court systems became the basis for the court system as established in the United States.

The Supreme Court of the United States hears cases brought to it from lower courts. The rulings made in lower courts can be based on precedence. This is the practice of basing a decision upon earlier rulings. This practice follows that established in common law courts in England. Other rulings can be made according to what the lower court judges and the Supreme Court justices consider fair. This follows the practice of the Lord Chancellor's office in England.

By the beginning of the 20th century, a third consideration had been added as the basis of court rulings. Justice Oliver Wendell Holmes applied Darwinian thinking to the law. He argued that rulings also could be made or needed to be made based on the needs of society. In his explanation, he saw the slower approach to making rulings according to precedence as not keeping up with the changes occurring in the modern world.

Precedence, fairness and the needs of modern society have now evolved as the basis for rulings in the appellate courts of the United States.