Should judges in America make law?
Conservatives especially say ‘no!’ A favorite conservative mantra is “judges should apply the law and not make law.” What they mean is that, in the U.S., the only proper law-making bodies are legislatures. Courts should merely ‘apply’ constitutional, statutory, and administrative directives to disputes at hand.
Of course, no serious person, conservative or not, denies that there are genuinely challenging practical problems in applying constitutional and statutory language in specific instances. But the modern conservative world-view has as part of its core a searing hostility to judicial discretion.
I’m sympathetic to this hostility to judicial discretion, but for reasons different from those expressed by many conservatives.
Here’s the thumbnail version of my view. I agree that judges should not make law. I disagree that judges should defer meekly to legislatures. No one should ‘make’ law. As much as possible, law should be ‘made’ by a decentralized process of human interactions. From this decentralized process, law emerges organically. Judges should discover this law and apply it.
The best law is organic – it evolves undesigned from countless interactions of ordinary men and women going about the everyday business of life. Without anyone designing a rule to, say, govern the allocation of automobile parking spaces in a crowded college parking lot, effective rules emerge to do so. For example, if you’re searching for a parking place and come upon another car stopped, with its turning signal on, near a parking spot from which a third car is just leaving, that parking spot goes to the driver of that other car.
I will not here attempt to prove anything; I rest content to report my sense that virtually all worthwhile laws are of this nature. The proscription against murder, for instance, was not first thought up by some genius or council and then promulgated and enforced. It emerged ‘naturally’ in human social interactions. Likewise with laws against theft, fraud, and arson. Likewise with the bulk of the law of property, contract, and tort. Likewise with commercial law. Even traffic law is surprisingly organic.
Trouble arises when a centralized authority claims a monopoly of society’s law-making powers. Legislation and bureaucratic directives become confused with ‘law.’ The will of the sovereign becomes mistaken for the laws of society.
Judges backed by a powerful sovereign can and do ‘legislate from the bench.’ But the real problem is not that unelected judges issue arrogant directives. The real problem is the sovereign power that empowers anyone – judge or legislature or administrative agency – to issue and enforce arrogant directives.
Conservatives are mistaken, in my view, to suppose that elected legislatures are less arrogant than unelected judges. Conservatives are also mistaken to believe that the elected branches genuinely represent the will of the people. (See the works of Kenneth Arrow, James Buchanan, Gordon Tullock, and Mancur Olson.) Left-liberals are mistaken to assume that smart, caring lawyers draped in black robes and who regularly read The New York Review of Books can or should engineer society for the better.
For a variety of prudential reasons it’s desirable – if sovereign power exists – to have its exercise shared among competing functionaries. But the modern American debate, in which those who want the exercise of sovereign power confined to legislatures are pitted against those who get all giddy and happy to imagine sovereign power being exercised freely by Really Smart Judges, misses the mark.