Why Judges Make Law: The Roots and Remedy of Judicial Imperialism

Nancy Pearcy, author of Total Truth, is quickly becoming one of my favorite writers. Below is my summary/outline of her article called “Why Judges Makes Law: The Roots and Remedy of Judicial Imperialism”, which deals with the problem of the judicial system interpreting and making new laws.

The entire article can be found at: http://www.pearceyreport.com/archives/2005/09/post_2.php

1. The Problem: "Whether Judges should interpret the law or make new law"?

“There is a delicious irony about the Supreme Court's taking up a case that involves one of the most contentious legal issues of our time: whether judges should interpret the law or make new law.”

2. History of Judicial Usurpation

"(Prior to 1800) The concept of obligation was thought to derive from the inherent rightness or justice of the law, and the role of judges was not to make law but only to discover and apply pre-existing rules."

"By 1800, however, these classic concepts of law had been largely abandoned. To accord with a political system of popular sovereignty, law was redefined as based on will of the people. Popular consent was extended from the political sphere to the legal sphere. Yet the idea that law is an instrument of will was a two-edged sword, for it also meant that law could be shaped by the will of the judge intent on molding legal doctrine according to public policy goals."

3. This Approach to the law was influenced by the Pragmatic Philosophy which is rooted in Darwinism

"This approach to the law received its most influential philosophical justification in the writings of Oliver Wendell Holmes, Jr., an important founder of a school of thought known as legal pragmatism. Legal pragmatism traces its origins to the early decades of the 20th Century when America was wrestling with the implications of Darwin's theory of evolution. Holmes was one of a group of scholars whose goal was to work out the implications of Darwinism for an overarching philosophy of life, which came to be called pragmatism."

"The development of American legal philosophy underscores the crucial role played by the Darwinian view of origins in every area of thought. Darwinism is not only a biological theory; it is also the basis for a comprehensive worldview--implying a new philosophy of mind, knowledge, morality and law. In modern society, science is given authority to tell us "what really is," with the result that philosophy and the humanities adapt to its vision of reality. Thus a direct line connects Darwinism to both the postmodernism of Richard Rorty and the pragmatic moral skepticism of Richard Posner. In these philosophies, the only objective and absolute truth is that there are no objective and absolute truths. In essence, the death of God substitutes for the existence of God, in the sense that it functions as the one fundamental truth that cannot be doubted"

4. Is the Law Only a Product of Cultural Evolution?

"In his highly influential 1897 essay "The Path of the Law," Holmes even reduced law to a summary of the social and economic policies shown scientifically to work best. As he put it, "The man of the future is the man of statistics and the master of economics." Law was redefined as a tool for identifying and manipulating factors aimed at creating social harmony and progress."

"In short, law was little more than a tool for social engineering, using the coercive power of the state to enforce the policies deemed by bureaucrats to be most desirable. To quote Holmes again, the justification for a law is not that it is consistent with universal principles but "that it helps bring out a social end which we desire."

"In short, for Holmes law is not based on any eternal or divine moral law; it is strictly a product of cultural evolution, and it functions as an instrument of social policy".

5. Pragmatism leads to the Separation of Morality (And God) From Law

"Pearcy quotes Richard Posner (a neopragmatists), "The only warrant for believing that there is a moral law that is 'out there' in the very strong sense claimed by a Plato or an Aquinas," Posner says, "is a certain type of religious faith, the faith in a Supreme Lawgiver and in a spiritual reality as real as a material reality." But this position Posner excludes by definition, without any argument, from academic discourse: "religious arguments are not a part of academic moralism." In a recent essay, he writes that a pragmatist judge facing a new situation for which there is no clear legal precedent "does not look to God or other transcendental sources of moral principle." For Posner, the only sound basis for a legal rule is social advantage;"

"The chief theoretical failing of pragmatism is that its only measure for evaluating law is whether it "works"--whether it achieves desired social goals: It offers no transcendent principles by which to say whether those goals themselves are good or bad. "


6. The Battle Against Darwinism is the key in Defeating Judicial Imperialism

"Thus if conservatives want to make a thorough-going critique of what Kristol and Bell denounce as "judicial supremacy," we must begin with Darwinism as a scientific theory. Philosophical and moral critiques of pragmatism have been offered by several philosophers, from Bertrand Russell to Ronald Dworkin. But such critiques will remain ineffective if Darwin described what is in fact the case in nature: If natural forces alone produced the human mind, for example, then we must accept the naturalistic and reductionist conclusion that the mind is merely a tool adapted for survival--along with the relativistic and skeptical implications this has for morality and law. Thus we need to be prepared to take the intellectual battle into science itself. The controversy over Darwin versus design is not a peripheral issue but lies at the heart of the cultural crisis of our day."