Asked in Law & Legal IssuesUS Constitution
Do judges make law in common law countries?
February 20, 2011 6:09AM
Yes. Under a common law legal system judges make was is known as 'case law' ie. they can create a precedent for future decision when they rule on a case.
More often than not, judges' decisions go by precedent case law, ie. they have a look how previous judges have ruled in similar situations to guide their ruling. If there is no precedent then they will first look to the constitution as the highest law, then any relevant subordinate laws and making a ruling - this case would then become a precedent for future cases of a similar nature.
Judges will however, look at the societal changes that make have occurred since any precedents ie. the precedent may have been an outdated discriminatory decision based on the laws of that time - therefore they are able to make a ruling that will generate a new precedent.