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?
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