Judges can create laws through judicial decisions, known as case law, which can expand or challenge existing legislation. Only higher courts can establish legal precedents, and judges must provide clear legal reasons for their decisions. Other courts must uphold or challenge the law, creating a body of case law. Judges gather supporting information to make clear the logic behind their decisions. Case law allows the legal system to evolve with society and can use existing legislation to argue a case.
A law made by a judge is a law rooted in a judicial decision, not a piece of legislation enacted by the legislator or a regulation created by a government agency with the legal authority to do so. The collective body of case law in a nation is also known as case law. Many nations allow judges to establish legal precedents when making high court decisions, adding to the body of law in a nation and providing a new interpretation of existing laws.
The lower courts do not have the authority to make case law. Only appellate judges and other higher courts are able to establish legal precedents by changing the way courts interpret a law or by offering a new interpretation that expands on an existing law. Judges cannot invent laws out of thin air; they must be able to provide clear legal reasons for their decisions, with supporting information in the form of decisions in individual cases.
After a law is created by a judge, other courts are required to uphold the law or uphold its challenges. While other courts abide by the law, they enforce it and create a body of case law to support the original judge’s interpretation of a legal situation. If the appeal is filed in another court, the other judge may choose to overturn the decision, denying the law pronounced by the judge, or uphold it, leaving the law in effect.
Case law provides an important mechanism for allowing the legal system to evolve with society, as judges deal with cases that lawmakers may not have anticipated or face challenges for pieces of legislation that appear to have dubious merits. Judge-made law can expand the authority of a given law, as seen when a judge decides that an existing law covers a situation, even if indirectly. It can also challenge, and sometimes overturn, the interpretation of existing legislation.
When a judge prepares an opinion that he knows will set a precedent, he gathers as much supporting information as possible to support the decision and make clear that while the interpretation is new, the logic behind it is sound. This may include excerpts from opinions written by other judges, discussions of the intent behind given legislation, and broader overviews of societal norms and beliefs. In the United States, for example, a judge can use the Bill of Rights to argue a case, arguing that he would violate the rights in this document by interpreting a case any other way.
Protect your devices with Threat Protection by NordVPN
