Rulings made by all courts are based on preexistent rules (statutes) enacted by the legislature, although the procedures differ significantly between countries that use civil law and those that use common law systems. However, when applying statutes, courts have the responsibility of interpreting them, which changes these rules from generalizations to specificities. Sometimes, the court mat fills the gaps in the statutes to address situations that lawmakers did not foresee at the time of drafting the law. When courts make settlements on individual cases, a crucial byproduct is created by applies beyond the specific individual case, meaning that courts devise rules for making decisions on future cases. The decisions made by the court, based on these interpretations, are then used to determine the outcomes of subsequent cases in the future. In countries that use the common law system, these decisions are referred to as precedents, which are policies and rules with the same level of authority as statutory law. As a result, lawmaking is not a function; it is not only reserved for the legislature, but also for the courts. Nevertheless, the rulemaking function of courts has been a subject of debate, especially with regards to the view that courts are not democratic. The current paper performs a critical analysis of the statement, “Judicial precedent should not be a source of law”. The benefits of the judge-made law are undermined by the lack of its democratic legitimacy. This paper disagrees with this statement and maintains the view that, even though statutory law is important, judge-made law is also important. In other words, the democratic legitimacy of judge-made law is the same as that of statutory law.
Under the common law system, the process of creating judicial precedents is also referred to as stare decisis, which literally means “to stand by decided matters”. In this respect, judges must adhere to earlier decisions. The two rationales for using judicial precedents are to save judges the effort and time to look for new solutions to similar problems, and that the law has the primary aim of rendering a predictable and uniform justice. The principle of fairness requires that when a person dealt with it in a particular manner today, another person exhibiting similar conduct under the same conditions at a later date should receive the same treatment under the law. In other words, courts have the responsibility of ensuring that similar cases are treated in the same way. A feature of the stare decisis system is that the judge creates the law (judicial precedent), which results in judge-made law. In countries having the civil law system, theoretically, all court decisions draw upon laws passed by the legislature; as a result, the judicial precedent doctrine is not applicable. Judges have the sole role of applying the law passed by the legislature. Nonetheless, a practice usually deviates from theory. Despite the fact that the civil law system might be somewhat comprehensive, trying to address all the components of human behavior and claiming to provide ready-made solutions to all potential issues can result in the development of extremely vague provisions. This is because such provisions tend to be abstract and lack meaning in the absence of judicial interpretations. Laws passed by the legislature cannot predict all the potential circumstances that may emerge before the courts. An example is when advances in technology create new loopholes for crimes. Judicial decisions come in handy in addressing these gaps in-laws, since the court cannot refuse to make a ruling on the basis that it has not been informed in advance regarding the answers to the questions. Court decisions related to unexpected situations in the legal code and court interpretation on vague legislative codes are often published in the legal documents used in numerous countries, using civil law systems. Moreover, judges and lawyers usually cite these decisions and interpretations. Although these decisions are not deemed to be “binding” in civil law systems, since judges do not have a legal obligation to adhere to past decisions, they are neither disregarded nor forgotten. In practice, judicial precedence and interpretation of vague laws have the same influence of statutory laws in countries that follow the stare decisis doctrine.
Judge-made law is a more common practice that is openly acknowledged in countries using the common law system when compared with civil law countries. Through court decisions that interpret statutes with authority, courts in common law countries have managed to create a significant body of law devoid of statutory foundation. Every time judges encounter a dispute that lacks a clear statutory resolution – something that occurs regularly – judges have to make decisions based on their own views of justices. Subsequent judges may adhere to these rulings and decide similar cases in the same way, although they differentiate past cases in the event that they discover dissimilar variables. The subsequent cases are then made precedents to be adhered to in future cases having similar fact patterns. As a result, there is the possibility that numerous precedents, being pertinent to a case, although they may be contradictory. The resulting accumulation of these judicial precedents creates the common law, which denotes the outcomes of judges’ decisions and their reasons. In countries using the common law system, the scope of the legislation is more limited, when compared to civil law countries.
The attractiveness of judge-made law as a source of law has been an issue of contentious debate in common law and civil law countries. There is a universal agreement that courts in democratic countries should not lay claim to unlimited legislative power since the democratic accountability of the judiciary is lower when compared with that of the legislature. The democratic principle requires the recognition of power and duty of the legislature to erase and change jurisprudence that is perceived to be inappropriate or erroneous. As a result, those against judicial law-making often maintain that judge-made law is undermined by its undemocratic process. Judges are at a dilemma when faced with a situation whereby existing statutory law is either unfair or outdated when applied to cases presented before the courts. Those in support of judicial lawmaking argue that judges should be able to amend the law to accomplish what they consider to be the just outcome or simply avoid unjust outcomes. Few observers, particularly judges, consider strict devotion to the letter of the law as being more important than attaining just and fair dispute resolutions.
In common law systems, the precedent doctrine drives the binding effect. Furthermore, the doctrine converts courts into both makers and appliers of rules. For instance, when a court creates a precedent that must be followed by other courts when dealing with the same issue, it is said that the court has created a binding rule. In instances whereby a judicial precedent act as an application of a legislative provision, the precedent doctrine can lessen the indeterminacy of legislative provisions over time by changing components of those provisions and including more details, following the emergence of new issues. In fact, in the bulk of the history of Anglo-American law, most of the legal rules were generated from the judicial precedent system and not democratic legislation. It is only in the 19th century that statutory law started rivaling judicial precedent as a source of law. The statutory law achieved its dominance just recently in the 20th century, even though the bulk of the law is derived from judicial lawmaking. This explains the fact that American and British law systems, including their derivatives, are often considered as common law systems. Common law denotes the judge-made law thought to be derived from the traditions and customs of the community, instead of legislative acts. In contrast, civil law systems used in Continental Europe are based on a tradition that dates back to the canon law of the Roman Empire and the Napoleonic codes. In these countries, the judicial precedent doctrine is rejected; as a result, the rulemaking burden primarily rests on the legislature.
As it was mentioned earlier, the judicial precedent approach to lawmaking has been criticized, primarily due to its undemocratic nature. In this regard, those against judge-made law maintain that the process lacks the participatory aspect associated with democratic legislation. As a result, apart from the participation gap associated with judicial lawmaking, another issue associated with the judge-made law relates to the fact that subsequent litigants bound by the judge-made law and the non-litigants who adjust their behaviors to avoid becoming litigants. Moreover, litigants who are parties to the precedent-setting cases, do not participate in the process of lawmaking. To this end, the level of democratic participation for current and future litigants and non-litigants bound by the precedent causes problems. Hence, judge-made law is perceived to be undemocratic.
However, closer scrutiny reveals that the apparent problem cited by critics of judge-made law (lack of democratic legitimacy) withers away to nearly not being a problem at all. First, contemplate the fact that in democratic legislation, the concept of participative lawmaking itself results in the creation of laws that bind several people who did not participate directly in making the law. Just like judge-made law, statutory laws can be applied in the future, which constrains the behavior of people and determines the outcomes of disputes between people who were not present at the time of creating the law. Therefore, it can be argued that the lack of participation in the lawmaking process is a feature of both statutory and judge-made law, which means that the statutory law suffers from the same problem as judicial precedent - a lack of democratic legitimacy. For instance, the Federal Sherman Antitrust Act was enacted in 1890 by President Benjamin Harrison and is still in force today with subtle amendments. It is likely that no American alive today was alive at the time of the adoption of the Sherman Act, yet the Act binds the current generation, as it bound the past generations. This is not the case with judicial precedents since they are regularly altered. People are not worried about the intergenerational binding effect of statutory law because the present generation can use the same democratic avenues to amend or reap old statutes. The case is the same for judge-made law in the sense that precedents are not binding forever since subsequent courts can overrule previous precedents when a string case is presented. For instance, the United States Supreme Court has overruled some of its decisions made in the past. Even in the UK, the House of Lords, in some instances, deviates from precedents.
The democratic legitimacy of judge-made law equally compares to that of democratic legislation. Apart from overruling, the binding effect of judicial precedents can be reversed using lawyers’ term “distinguishing the precedential case.” The precedent doctrine demands like cases to be treated alike, which requires that binding effect, associated with a precedent, is only applicable to future cases that are the same as the precedential case. Also, democratic legitimacy is based on the assumption that the representatives will have the interests of their constituents at heart. This is the same case with judge-made law in the sense that litigants to a court case that sets the precedent are by definition, the representatives of subsequent litigants in similar court cases in the future. The judicial precedent doctrine requires consistency in the application of precedents in the future, which implies precedent-setting litigants can be considered to be democratic representatives of future litigants in court cases with similar facts. This is a case of interest representation in cases of similar circumstances.
In conclusion, it is evident that the judicial precedent doctrine is an important aspect of any legal system. Judicial precedent plays an important role in addressing unforeseen situations and vague expressions in the legal code. Nevertheless, judicial lawmaking has been criticized as being undemocratic. In this paper, it has been shown that the democratic legitimacy of the judge-made law compares to that of democratic legislation. Just like statutory law, judge-made law can be applied to people who were not present at the time of its creation; as a result, the intergenerational bound effects of judge-made law are the same as that of statutory law. Judge-made law is not forever binding and can be amended in subsequent cases just the same way statutory law can be amended using repeals and amendments. Thus, judge-made law can be overruled to make them relevant to current situations. Moreover, judges act in accordance with the interests of litigants in the precedent-setting case, who, in turn, are representatives of subsequent litigants. This contributes to the democratic legitimacy of judge-made law. Overall, it is evident that judicial lawmaking enjoys the same democratic legitimacy as statutory law; thus, judge-made law is a crucial source of law that is democratically legitimate.