Judge-Made Law

…has a long tradition in the English/American legal system.  What do you think Common Law is?!!  Montesquieu’s analysis, dividing the British (uncodified) constitution into three branches – legislative, executive, and judicial – seems to have been historically ignorant.  Parliament only became the lawmaking busybodies they are today in the last couple centuries.  Before that, Parliament moved far fewer statutes, the King made law by himself or in his Council, and judges dispensed justice ideally on the basis of actual justness, reason, Divine law, legal tradition, and (Western) Christian morality, “from time immemorial” – the Common Law or case law.  (The much-lampooned Trial by Ordeal had to be relatively rare when you think about it, eh?)

Of course, Parliament didn’t used to be in mostly continuous existence like it is today, giving them plenty of time for politician mischief!  The King only used to convoke MPs when he needed them to allow a tax for his administration and military.  At that time Parliament used to petition him for some changes in the laws (or “redress of grievances“) before granting him his tax.  And then they were gone until he needed them again.  Of course, then there was little Parliamentary “oversight” over his administration … so we’ve traded royal court mischief for politician mischief.  Which is worse?!!

Mostly, Continental European countries have completely codified their legal systems via legislatures and/or written Constitutions.  [Maybe one reason why the proposed EU Constitution was like a New York phone book … and that the EU is infamously bureaucratic!]  They have no more “judge-made law”!  Is that what you want?!  Catholic, Napoleonic, Imperial, French, German, Roman, Louisiana/Quebec law?!!  They seem to have taken Montesquieu very seriously.

In reality, of course, even most U.S. courts feel hamstrung to merely apply existing law, and only State Supreme Courts or the U.S. Supreme Court, each in their own constitutional competence, feel empowered to interpret law – but even they are (supposed to be) bound by U.S. and State written Constitutions, unlike English courts traditionally, U.S. “conservative” (actually Classical Liberal) and antigovernment whining notwithstanding.

So really, most of America’s judge-made law is many centuries old, and not at all recent – much even back to “time immemorial,” even before AD 1066 – “for the common law of England was not introduced by {William} the conqueror.”

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