Judicial Legislation: A Study in American Legal Theory

Judicial Legislation: A Study in American Legal Theory

Judicial Legislation: A Study in American Legal Theory

Judicial Legislation: A Study in American Legal Theory

Excerpt

Perhaps because of our own development or possibly because it was forced upon us by events beyond our borders, the twentieth century has been for the United States a period of vigorous re-examination of fundamental ideas. The literary aspects of this development are more or less familiar, and agile indeed must be the person who has escaped the energetic and sometimes illuminating controversies in the fields of economics and politics. That the philosophy of law has been undergoing a similar re-evaluation is not so well known. This book discusses certain phases of that reassessment as it pertains to one of the basic problems of our legal system -- the legislative function of the judiciary.

The issues can be quite simply stated. The legal philosophy dominant when our government was established did not contemplate judicial legislation in any form. Since that time, however, there has developed a sizable volume of literature that holds as a matter of analysis that judges do legislate, whatever may be the official doctrine. Sometimes the practice is approved, sometimes not, but, in any event, skepticism of the original theory of our legal system has become widespread.

The tendency to question whether the traditional conception of the judicial function is adequate, either as an explanation of our legal history or as a governmental device to serve for the future, has not been an isolated phenomenon. In formulating their criticisms of our standard theory and in laying down their norms for future judicial conduct, American jurists have openly and conscientiously borrowed from the work of contemporary philosophers, economists, sociologists, and political scientists -- not to mention psychologists. And a certain urgency has been added to their efforts by the very real constitutional impasse which culminated in the early 1930's and was by-passed, but not settled, by the Roosevelt appointments.

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