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The applicability of a law is dependent upon an underlying set of facts and circumstances.

When you apply a law to a set of facts, you effectively interpret it to be applicable, and if it is applicable to a set of facts and circumstances that haven't been previously tested, then I suppose you're making law -- but it is the same law, just applied to a new set of facts.

The big difference of opinion is not whether a law should be made or interpreted as such, but rather what the law is. There is a spectrum of opinion and judges of those courts (appellate courts) that review how laws are applied to facts, have differing opinions.

The spectrum ranges from those who believe that if the law does not contain the words specifically applicable to a situation, it should not be applied -- these are the "strict" constructionists.

At the "other end" of the spectrum are judges who believe that while there may be no new laws as such, the sources and scope of our body of laws are broader.

Either way, judges "make law" by interpreting it as applicable or inapplicable, or if applicable, how it will apply.

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15y ago

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