Ronald Dworkin gives the example of the story of morality and law as being one of a giant chain novel, and the judge as a novelist, and when he interprets prior novels (i.e., using precedent in hard cases). However, do judges "make" laws? Or interpret them? Are those terms even distinguishable?
While some legal positivists would say that the judge does indeed make decisions, in some cases, based on "personal discretion," Dworkin argues that every decision is an interpretation, and every interpretation contains evaluation. Evaluation inherently contains some kind of moral judgement. Therefore, every decision contains moral judgement, considering, of course, his premises hold up. If every decision contains moral judgement, and laws are merely legislated forms of moral judgement, than do judges make laws, or uncover them?
More accurate and constructive "interpretations," of the United States Constitution have led to judicial decisions which confirm universal human civil rights, suffrage, ect. The fact that some of these decisions came along later than others does not imply that they have not always existed within the human race, for our entire existence. With that being said, are those laws created, or as John Marshall famously said, do judges merely, "say what the law is." One cannot create or make what has always existed.
Based on your last paragraph and answering the question ending in your second paragraph, I would say that judges uncover the law. That is because they are interpreting how a law can function to ever changing circumstances. So like you said, that there are more "accurate and constructive 'interpretations" is only due to the fact that a particular hard case has not run aground to a judges attention, hence it has not been able to be interpreted in that way yet. And in a sense then they are not creating a law, but refining and broadening it since future judges would have to take into account the cases of the past. Perhaps it could be said they are cultivating the law.
ReplyDeleteCultivation is a useful image for what judges do. I'll have to think about that.
DeleteBut Tom, it would be helpful if your comments showed up with your name on them, so I don't have to guess who "Lossen15" might be...
I'm inclined to think that judges might construct laws through an interpretive process, and with integrity; but, it might not follow that 'laws are merely legislated forms of moral judgment'. While laws may contain moral content, they might also have other properties distinct from moral concerns. Judges might be 'uncovering' certain underlying moral content of the human condition that may possibly exist in a state of nature. Or, law in another sense might be epiphenomenal, an emergent property – the result of our interpretations.
ReplyDeleteI agree with John Marshall's stance on this issue when he states that judges "say what the law is", however I do not think this issue is that black and white, it is much more complicated. While it is true that judges make important decisions based on laws that have been previously put in place, every judge makes these decisions based on interpretation and their own moral values, after all they are only human right? In class on Tuesday, Professor Silliman gave the example of the skateboard. If there is a section in a parking lot that does not allow any vehicles to park there, when someone with a skateboard comes along and parks their skateboard in that area will they be given a ticket or not? Is a skateboard a vehicle? These questions would have to be answered by the current judge or town official. That judge would be making their decision based on the previous law made, but interpreting this law in a new way. So yes, judges do "say what the law is" but each law is open to its own interpretation based on who the judge is making decisions at the time.
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