On Law, Politics, and Judicialization

By Martin Shapiro; Alec Stone Sweet | Go to book overview

2 Judicial Law-Making and Precedent

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 activity of all organs of government. In Western legal systems, it can hardly be denied that courts make rules all of the time, since these activities are minutely recorded in case law, and thus it is impossible to deny that judges are political actors. Nonetheless, the assertion that judges engage in a mode of law-making that is exclusive to adjudication, which sets them apart from other law-makers or the 'political' branches and strictly limits their law-making discretion, typically follows. This is the method of law-making associated with the rule of precedent and the common law doctrine stare decisis. In this chapter, we examine some of the problems posed by this formulation. As important, both pieces address, in different but complementary ways, a great paradox: how can it be that judicial decision-making constantly succeeds in changing law while being governed by pre-existing law?


Towards a Theory of Stare Decisis

Those who wish to assert that judges are political actors engaged in policy-making must confront the claim that judges employ modes of decision-making peculiar to themselves, setting them apart from politics and compelling them to follow the law rather than make it (see Levy 1988). In one particular legal realm, it has been impossible for the legal academy to camouflage judicial law-making by calling it 'interpretation'. Even in the most conventional view, the Anglo-American common law is case law 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 the 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. The principal mode of screening

-90-

Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this book

This book has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this book

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this page

Cited page

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited page

Bookmark this page
On Law, Politics, and Judicialization
Table of contents

Table of contents

  • On Law, Politics, and Judicialization iii
  • Acknowledgements vii
  • Contents ix
  • List of Figures x
  • 1: Law, Courts, and Social Science 1
  • Political Jurisprudence 19
  • Judicialization and the Construction of Governance 55
  • Appendix 88
  • 2: Judicial Law-Making and Precedent 90
  • Towards a Theory of Stare Decisis 102
  • Path Dependence, Precedent, and Judicial Power 112
  • 3: Constitutional Judicial Review 136
  • The Success of Judicial Review and Democracy 149
  • Constitutional Politics in France and Germany 184
  • 4: Testing, Comparison, Prediction 209
  • The Giving Reasons Requirement 228
  • Appendix 290
  • 5: Judges and Company 292
  • Globalization of Freedom of Contract 296
  • Islands of Transnational Governance 323
  • 6: Abstract Review and Judicial Law-Making 343
  • References 376
  • Index 407
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen
/ 417

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.