Thursday, May 08, 2008
The relationship between judicial activity and law making is a crucial question for any social science of
courts because law making, or the ongoing adaptation of rules, is the most salient acitivity of all organs of
government. In Western legal systems, it ican hardly be denied that courts make rules all of the time,
since these activities are minutely recorded in case law, and thus is it impossible to deny that judges are
Toward a theory of stare decisis:
Even in the most conventional view, the Anglo American common law is case law not statutory
law, that is, the Anglo American common law is case not statutory law, that is, law made by judges not
legislators. One of the most noble accomplishments of legal doublethink is its ability to refer to common
law as judge- made law while at the same time asserting as a general and universal proposition that judges
apply rather than make law, and thereby are to be distinguished from politicians.
Common law judges follow a special set of rules of decision, called stare decisis, which puts them
outside of politics and prevents them from making personal policy choices.
Stare decisis treats, in any given area of law, each judicial decision as a potential precedent for the
next round of litigation or, rather, treats the body of rules and reasoning announced in previous cases as
binding upon the judge deciding the current case. Legal reasoning- that is, reason by analogy.
The law changes. The law is judge made. Stare decisis, however, magically separates the judges from the
politics of policy choice that characterizes other law makers.
Multiple, changing, acceptable-level goals. The criterion of choice is that the alternative
selected meet all of the demands-goals- of the coalition.
An approximate sequential consideration of alternatives. The first satisfactory alternative
evoked is accepted. Where an existing policy satisfies the goals, there is little search for
alternatives. When failure occurs, search is intensified.
The organization seeks to avoid uncertainty by following regular procedures and a policy
of reacting to feedback rather than forecasting the environment.