The Nature of Judgment

Judicial Opinions. If it is true that orders are not really law, then this raises some significant implications for judicial opinions, since judicial opinions are customarily issued in the form of an order. Is a judicial opinion an order or a rule? When a judge makes a ruling, is it a generally applicable rule of action like a statute? Is a judicial opinion law? Accordingly, this topic will be examined in greater detail below.

I.     Modern views. The modern view is that judges do not find law, but make law. In fact, many legal scholars believe this result is not only convenient, but necessary, and insist that things could not be any other way.

A.     John Austin dismissed the Blackstonian view of case precedents (infra ) as a “childish fiction.” He could not understand how judges could not help but make the common law; otherwise, that law was “a miraculous something made by nobody existing, I suppose, from eternity.” [Austin, J., Lectures on Jurisprudence 655 (4th Ed. 1979).]

B.     A similar view was popularized by Oliver Wendell Holmes, Jr.:

The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi-sovereign that can be identified. . . . [So. Pacific Co. v. Jensen, 244 U.S. 205, 222 (1917).]

The life of the law has not been logic: It has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellowmen, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. [O.W. Holmes, the Common Law, at 1-2.]

C.     The modern view of judge made law was stated succinctly by John Chipman Gray:

Law is made up of the rules for decision which the courts lay down: That all such rules are Law; that rules for conduct which the courts do not apply are not Law; that the fact that the courts apply rules is what makes them Law; that there is no mysterious entity “The Law” apart from these rules; and that the judges are rather the creators than the discoverers of the Law. [John C. Gray, the Nature and Sources of the Law 121-123 (2nd Ed. 1921).]

II.     The Biblical record. The biblical record suggests that the judicial function, at least as it pertains to the law of nature and the divine law, places a judge in the role of discovering law, but not creating it. This makes sense from the standpoint that one would not expect God to approve of people modifying existing divine laws, or pronouncing new laws of divine origin. No person or group of people can rightfully claim to “make” a new provision of the law of nature or the divine law.

A.     The nature of judgment is to make known the law of God. The biblical record contains a number of examples in which people are held accountable to God’s law. These case histories evidence a common methodology for the exercise of legal judgment.

1.     Moses judged the people of Israel according to the following methodology:

“When they have a dispute, it comes to me, and I judge between a man and his neighbor, and make known the statutes of God and His laws.” [Ex. 18:16.]

By “making known” the law of God, Moses indicated that his judgment was not merely the exercise of his personal will, but rather was a declaration of law which pre-existed the dispute being brought to him. That is, Moses did not purport to “make” laws for Israel, but only to declare what laws he had “found.”

2.     Samuel, who later judged Israel, exercised a judicial function by holding King Saul accountable to the law. Like Moses, Samuel did not judge according to a legal standard which was merely right in his own opinion, but judged that Saul had violated a pre-existing and known legal obligation.

Saul said, “Bring to me the burnt offering and the peace offerings.” And he offered the burnt offering. . . . But Samuel said, “What have you done? . . . You have acted foolishly; you have not kept the commandment of the Lord your God, which He commanded you, for now . . . your kingdom shall not endure.” [1 Sam. 13:11,13-14.]

3.     When Nathan judged David, he followed the same methodology for judging as did Samuel and Moses. In this case, the pre-existing law was “Do not murder.” [See, Ex. 20:13.]

“Why have you despised the word of the Lord by doing evil in His sight? You have struck down Uriah the Hittite with the sword, have taken his wife to be your wife, and have killed him with the sword of the sons of Ammon. Now therefore, the sword shall never depart from your house . . ..” [2 Sam. 12:9-10.]

Note: Nathan exercised his judgment in the office of prophet, not judge. In other words, Nathan’s judgment was not civil (legally enforceable), but spiritual (moral). Nonetheless, even in this context, application of God’s law to a specific situation called for an exercise of judgment based on declaring pre-existing law, not creating it.

4.     Similarly, Jesus never occupied the office of a civil judge. In fact, he expressly disclaimed such an office. [See, Lu. 12:14.] Yet, he did pronounce spiritual judgments from time to time. [See, e.g., Lu. 10:13-15.] He also followed the pattern of judging on the basis of the pre-existing will of God, not His own will.

“I can do nothing on My own initiative. As I hear, I judge; and My judgment is just, because I do not seek My own will, but the will of Him who sent Me.” [Jn. 5:30.]

B.     The nature of judgment is to resolve individual disputes. The Bible also, by way of example, indicates that the purpose of judgment is to resolve individual disputes by issuing an order to specific parties, not by promulgating rules of general applicability.

1.     Consequently, disobedience to a judicial order by the parties to the case was viewed as contempt, and punished as a capital offense. A judicial order must never be disobeyed because it is personally directed to the parties, who have no right to usurp the judge’s authority and to judge their own case. A statute, however, is not personally directed to any specific individual, and disobedience may defended in court. And, no one is bound by the judge’s order except the parties to the case.

“So you shall come to the . . . judge who is in office in those days, and you shall inquire of them, and they will declare to you the verdict in the case. . . . According to the terms of the law which they teach you, and according to the verdict which they tell you, you shall do; you shall not turn aside from the word which they declare to you, to the right or the left. And the man who acts presumptuously by not listening to . . . the judge, that man shall die.” [Deut 17:9,11-12.]

2.     The Bible also contains examples of both “rules” and “orders,” keeping them distinct. The implication is that orders are limited to specified individuals, whereas rules are not.

Example of a rule: “[I]n the cities of these peoples that the Lord your God is giving you as an inheritance, you shall not leave alive anything that breathes. But you shall utterly destroy them . . ..” [Deut. 20:16-17.]

Example of an order based on the preceding rule: “Thus says the Lord of hosts . . . `Now go and strike Amalek and utterly destroy all that he has, and do not spare him; but put to death both man and woman, child and infant, ox and sheep, camel and donkey.'” [1 Sam. 15:2-3.]

III.     The historic understanding. The understanding that judges do not make law has a certain plausibility biblically, but one may question whether any civil judicial system based on such a view will work. There is an obvious tension between the modern view of the judicial function as law-making and the biblical view of judgment as law-finding. Before we come to an opinion as to which view best conforms to the law, it may be well to consider the historic understanding of the matter. As the following evidence demonstrates, the historic understanding of judgment seems to favor judges finding the law, rather than making it. Although we may question the practicality of this view, the historic legal writers certainly seemed to think it would, and did, work.

A.     The role of the judge is to discover, not make, law. A judicial opinion is merely the means for justifying the issuance of an order, the applicability of which is limited to the parties of the case. A judicial opinion may discern and apply law, but it does not constitute or promulgate law. A judge is not authorized to make law.

1.     The role of the judge is to declare what law already exists. The standard legal maxim is, Jus dicere, et non jus dare. That is, the province of a judge is to declare the law, not to make it.

[Judges] are the depositary of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. [Blackstone, 1 Commentaries *69.]

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. [Marbury v. Madison, 5 U.S. 137 (1803).]

When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the government has only one duty; to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the court does, or can do, is to announce its considered judgment upon the question. The only power it has, if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution; and, having done that, its duty ends. [U.S. v. Butler, 297 U.S. 1 (1936), at 62-63.]

2.     Judicial opinions are evidence of what the law is.

[W]e may take it as a general rule, “that the decisions of courts of justice are the evidence of what is common law.” [Blackstone, 1 Commentaries *71.]

The best evidence of the common law is to be found in the decisions of the courts of justice . . .. The reports of judicial decisions contain the most certain evidence, and the most authoritative and precise application of the rules of the common law. [Kent, J., 1 Commentaries, at 473-78.]

3.     The role of the judge is to exercise judgment, not will.

[The judicial] department has no will, in any case. . .. Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law. [Osborn v. The Bank of the U.S., 22 U.S. 738 (1824).]

The judiciary . . . may truly be said to have neither FORCE nor WILL but merely judgment . . .. [T]he courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. . . . [However], [t]he courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. [The Federalist No. 78.]

B.     The role of the judge is to resolve disputes between parties. The purpose of judicial power is to resolve individual disputes, not to promulgate rules of general applicability. A judicial opinion is an order directed to the parties to the case, not a rule of action prescribed for other litigants or courts to follow.

1.     The role of the judge is to decide individual cases, not to prescribe rules of general conduct for people who are not parties to the case.

The province of the court is, solely, to decide on the rights of individuals . . .. [Marbury v. Madison (1803).]

2.     Federal judicial power extends only to “cases” and “controversies.” By implication, judicial power does not extend to prescribing rules, because all legislative power has been vested in the Congress, exclusive of the federal courts. [See, U.S. Const. art III, §2, and art. I, §1.]

3.     Some past U.S. Presidents have recognized that a Supreme Court opinion may bind the parties, but does not bind the executive (or other persons) as a rule of general applicability or political action.

Mere precedent is a dangerous source of authority . . .. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. . . . The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve. [President Andrew Jackson, veto message of July 10, 1832 against a bill extending the charter of the Bank of the United States.]

We oppose the Dred Scott decision in a certain way . . .. We do not propose that when Dred Scott has been decided to be a slave by the court, we, as a mob, will decide him to be free . . . but we nevertheless do oppose that decision as a political rule binding on the voter . . . the members of Congress or the President. . . .We propose so resisting it as to have it reversed if we can, and a new judicial rule established upon this subject. [Abraham Lincoln, Lincoln-Douglas debates, speech of October 13, 1858, VI Messages and Papers of the Presidents (1897), 5.]

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit . . .. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it [is] limited to that particular case . . .. [I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers . . .. [Abraham Lincoln, First Inaugural Address, March 4, 1861.]

C.     The role of case precedent in exercising judgment. In the common law tradition, prior judicial decisions, or case precedents, are entitled to a presumption of validity in guiding the resolution of present disputes. However, case precedents are not presumed to be infallible, and therefore ought not to be followed in certain cases. When this happens, it is recognized that the prior decision, being erroneous, was not “law” at all.

1.     Stare decisis is a latin phrase that means, “let the decision stand.” It creates a presumption that case precedents have accurately determined what the law is.

For it is an established rule to abide by former precedents, where the same points come again in litigation . . .. [Blackstone, 1 Commentaries *69, 71.]

A solemn decision upon a point of law, arising in any given case, becomes an authority in a like case . . . and the judges are bound to follow that decision so long as it stands unreversed . . .. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness. [Kent, 1 Commentaries, at 473-78.]

2.     Being bound by precedent was understood as a means for limiting judicial discretion, and keeping the judge’s decision to pre-existing law.

To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them. [The Federalist No. 78.]

3.     However, case precedents are binding in moral force only, that is, as a matter of persuasion, not as a matter of obligation. Prior opinions are not to be followed if plainly absurd. Thus, judicial opinions are not “law,” they are only evidence of it.

For it is an established rule to abide by former precedents . . . Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more, if it be contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law . . .. So that the law and the opinion of the judge are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law. [Blackstone, 1 Commentaries *69-71.]

But I wish not to be understood to press too strongly the doctrine of stare decisis . . .. It is probable that the records of many of the courts in this country are replete with hasty and crude decisions; and such cases ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error. Even a series of decisions are not always conclusive evidence of what is law . . .. [Kent, 1 Commentaries, at 473-78.]

IV.     The common law tradition. The historic understanding of judicial opinions was clearly in accord with the view suggested by the biblical record. However, these views should not be understood as contrary to the common law tradition, unless one is inclined to hold Blackstone, Kent and Chief Justice Marshall as contrary to that tradition as well. Rather, it is a question of what is really the common law tradition.

A.     The biblical-historical views affirms the role of judges to exercise the function of judicial review, to resolve legal disputes, and to explain the legal rationale underlying each decision. Further, this view affirms the value that case precedents have in future cases by virtue of the force of their reasoning. However, this view does not regard case precedents as legally binding on anyone other than the parties to the case, because a judicial opinion is in the nature of an order, not a “rule of action.”

B.     The biblical-historical view has been criticized and rejected modernly, among other reasons, on the basis that it is deceptive by pretending that judges aren’t making law when they really are. However, the modern view is subject to a reciprocal criticism, namely, that it provides a deceptive rationale for judicial law-making, when judges shouldn’t make laws at all. Under the modern view, ultimately, neither statutes, constitutions, nor prior decisions constrain any judge as a matter of legal obligation. The only legal constraint on a judge’s law-making ability is the decision of an appellate court or higher judge to reverse the law he or she has made. Although there are many other factors which influence the ability of a judge to make law, these are ultimately political, that is, subject only to what people will permit as a matter of policy. In fact, judicial “law-making” circumvents the normal legislative process and prescribes rules for general society without the consent of the people through their representatives. To the extent this approach is unchecked legally, it does not uphold our legal traditions, but subverts them.

C.     The biblical-historical view upholds the common law tradition in its best sense. Since all people are imperfect, legal judgments will often be imperfect. One purpose of the common law is to discover those imperfections and to correct them, not by prescribing new laws, but by more accurately stating what the original law was. Thus, the historical view constantly refers back to the original laws, whether prescribed in nature, the Bible, or a constitution. The modern view, however, looks back primarily to recent judicial memory, and shapes new opinions to meet new circumstances. The result of the modern view is that future cases get farther and farther from the original law so that its application can eventually be twisted to mean exactly the opposite of what the original law stated and purposed. Accordingly, under the modern view, law is rarely permanent, uniform and universal, but is often whatever the judge wants it to be.