Legal Foundations: The Framework of Law
by Gerald R. Thompson
The Characteristics of Law
The purpose of this chapter, and the next, is to answer the question, What is law? Another way to phrase this question is, How do we know a law when we see one? The answer to this question will have important consequences. For example, if we determine that not everything said by God (the Supreme Sovereign of the world) is law, then we would be ill advised to believe that everything said by our public officials is law. Therefore, before we can profess obedience to the law, we must be careful to distinguish it from things which are really not law at all.
The biblical record demonstrates that the characteristics, or nature, of law reflect the nature of God Himself. The historic understanding of the nature of law parallels the biblical record in most every respect. The preeminent characteristic of God for legal purposes is that He is the uncreated Creator of everything that exists. Thus, when God created the world, He prescribed the rules of law by which everything would be governed. This is implied in the fact that God created the universe and all it contains.
- In the beginning God created the heavens and the earth. . . . And God made . . . the stars also. [Gen. 1:1, 16.] The earth is the Lord‘s, and all it contains, the world, and those who dwell in it. [Ps. 24:1.]
THE DEFINITION OF LAW
The general definition of law most accepted during the founding of America and for the next century was the one given by Blackstone:
- Law, in its most general and comprehensive sense, signifies a rule of action . . . which is prescribed by some superior, and which the inferior is bound to obey. [Blackstone, 1 commentaries *38.]
Law, being prescribed by a superior, is therefore created (not the product of evolution), objectively real (not artificial or merely subjective in the mind of the inferior) and mandatory (not voluntary) upon the inferior.
Created by God (not invented by man, nor evolving).
Because everything which exists was created by God, law is the product of creation, not evolution. Just as the laws of gravity and thermodynamics did not gradually evolve, but were fixed and established at the time of the initial creation, so the laws of nature concerning human behavior have neither gradually evolved into or out of existence, but were created by God from the beginning.
Biblical record. The creation was spoken into existence by the Word of God.
- Then God said . . . and it was so. [Gen. 1:6,7,9,11,14,15,24,29,30.]
In creating the universe, God prescribed the rules by which the universe was to be governed.
- Give thanks to the God of gods . . . To Him who made the heavens with skill . . . To Him who made the great lights . . . The sun to rule by day . . . The moon and stars to rule by night, For His lovingkindness is everlasting. [Ps. 136:2,5,7-9.] Then the Lord answered Job out of the whirlwind and said, . . . “Where were you when I laid the foundation of the earth! . . . Do you know the ordinances of the heavens, or fix their rule over the earth?” [Job 38:1, 4, 33.]
When He created the universe, God also created the laws which govern human conduct and the various authorities which govern mankind.
- Let every person be in subjection to the governing authorities. For there is no authority except from God, and those which exist are established by God. [Rom. 13:1.] For by Him all things were created, both in the heavens and on earth, visible and invisible, whether thrones or dominions or rulers or authorities – all things have been created by Him and for Him. [Col. 1:16.]
Historic understanding. The law of nature was understood to be the creation of God, not the result of impersonal forces operating according to random chance.
- Thus when the supreme being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. [Blackstone, 1 COMMENTARIES *38.]
Human laws, following the divine pattern, were understood to be created by people, not merely having evolved into existence. Thus, all human laws must be promulgated (or announced) in some form, and the date of promulgation is the date of creation.
- [A] bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it. . .. [Blackstone, 1 COMMENTARIES *45.]
Further, the need to promulgate laws implies that there can be no ex post facto laws.
- [In the case of an ex post facto law,] it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law . . .. All laws should be therefore made to commence in futuro, and be notified before their commencement; which is implied in the term “prescribed.” [Blackstone, 1 COMMENTARIES *46.]
Objectively revealed by God (not merely reasoned by man, nor merely subjective).
Law is part of the objective reality created by the Creator whether people choose to recognize it or not. People can disobey the law of nature as it pertains to the rules of human behavior, but no one can change the law of nature or avoid its inevitable enforcement. Accordingly, God has taken great care to make His laws known to us, so that we cannot claim ignorance with respect to this objective reality.
Biblical record. The objective reality of God’s nature and His laws is plainly revealed in nature.
- The heavens are telling of the glory of God; And their expanse is declaring the work of His hands. . . . The law of the Lord is perfect, restoring the soul; The testimony of the Lord is sure, making wise the simple. [Ps. 19:1,7.] For the wrath of God is revealed from heaven against all ungodliness and unrighteousness of men, who suppress the truth in unrighteousness, because that which is known about God is evident within them; for God made it evident to them. For since the creation of the world His invisible attributes, His eternal power and divine nature, have been clearly seen, being understood through what has been made, so that they are without excuse. [Rom. 1:18-20.]
God took care to reveal a portion of His laws to Israel in order to establish the objective legal purpose and framework of that nation.
- Then the Lord said to Moses, “Thus you shall say to the sons of Israel, `You yourselves have seen that I have spoken to you from heaven. . . . Now these are the ordinances which you are to set before them.'” [Ex. 20:22; 21:1.]
God continues to reveal His Word (and by implication, His law) to all men through Jesus.
- God, after He spoke long ago to the fathers in the prophets in many portions and in many ways, in these last days has spoken to us in His Son, whom He appointed heir of all things, through whom also He made the world. [Heb. 1:1-2.]
Historic understanding. The pre-existing legal order of divine origin was acknowledged as being objectively real.
- Among men endowed with a right and sound mind there is an unchangeable law, which is called the law of nature. And if men having sick or distorted mentalities think otherwise, that has no bearing on the matter. [Grotius, Law of War.]
Human laws, after proper promulgation, are an objective reality for which no one can claim ignorance as an excuse.
- But when [law] is in the usual manner notified, or prescribed, it is then the subject’s business to be thoroughly acquainted therewith; for if ignorance of what he might know were admitted as a legitimate excuse, the laws would be of no effect, but might always be eluded with impunity. [Blackstone, 1 COMMENTARIES *46.]
Mandatorily imposed by God (not adopted by man, nor volitional).
The duty to obey any law is a mandatory obligation. Although the establishment of the form of government among men requires the consent of the governed in the form of a civil covenant, or constitution (see infra [§74]), a ruler does not require any additional consent of the governed to enact or enforce laws validly adopted pursuant to such constitution. The persons governed are bound to obey the law even though they neither ask for the obligation nor individually consent to its imposition.
Biblical record. God’s inherent right to rule over the entire creation originates in the fact that He is the uncreated Creator. Thus, the law of nature obliges every person, irrespective of individual consent, for no one can escape the fact he was created by God.
- [W]ho are you, O man, who answers back to God? The thing molded will not say to the molder, “Why did you make me like this,” will it? Or does not the potter have a right over the clay . . .. [Rom. 9:20-21.]
God establishes those persons whom He desires in positions of authority.
- “I have made the earth, the men and the beasts which are on the face of the earth by My great power and by My outstretched arm, and I will give it to the one who is pleasing in My sight.” [Jer. 27:5.]
The foregoing in no way implies that God or His law remove freedom of choice from people as to whether they will serve Him or not. The choice to serve God is governed by love (a volitional act), not legal obligation. However, this does not mean a person may choose whether the law of God will apply to him. If a person refuses to serve God, the law of sin and death [Cf. Rom. 8:2] will condemn him irrespective of whether he chooses to acknowledge the law or to be punished.
Historic understanding. The law of nature was regarded as mandatorily binding on all people, including all public officials.
- This law of nature . . . is of course superior in obligation to any other. . . . no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. . . . Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. [Blackstone, 1 COMMENTARIES *41,42.]
- The rules that they [the legislators] make for other men’s actions must . . . be conformable to the law of nature – i.e., the will of God, of which that is a declaration – and the fundamental law of nature being the preservation of mankind, no human sanction can be good or valid against it. [John Locke, 2d Treatise on Government, 77.]
Human laws were also recognized as something which is mandatory in nature. This is implicit in the fact that “ignorance of the law is no excuse.”
A RULE OF ACTION.
Law, being defined as a prescribed “rule of action,” is therefore characterized as permanent, uniform and universal. That is, law cannot exhibit relativity as to time, person or place. The form which law takes as a rule of action also reflects God’s nature. Although there are many attributes of God’s nature, three which are most important for describing the nature of law are God as eternal, God as no respecter of persons, and God as omnipresent.
Permanent (not relative as to time).
God’s eternal nature is reflected in the permanence of His law. A permanent law is one which neither changes with time, nor varies in its application over time.
God is an eternal being, existing from everlasting to everlasting, without beginning or end.
- Before the mountains were born, Or Thou didst give birth to the earth and the world, Even from everlasting to everlasting, Thou art God. [Ps. 90:2.] Do you not know? Have you not heard? The Everlasting God, the Lord, the Creator of the ends of the earth Does not become weary or tired. His understanding is inscrutable. [Isa. 40:28.]
God is an eternal being whose nature does not, and cannot, change. Similarly, His purposes for, and promises to, mankind never change.
- In the same way God, desiring even more to show to the heirs of the promise the unchangeableness of His purpose, interposed with an oath, in order that by two unchangeable things, in which it is impossible for God to lie, we may have strong encouragement . . .. [Heb. 6:17-18.] Jesus Christ is the same yesterday and today, yes and forever. [Heb. 13:8.]
The law of God, having been created by the Word of God (supra [§37]) and revealed by the Word of God (supra [§38]), must necessarily be as unchangeable as the Word of God.
- “God is not a man, that He should lie, Nor a son of man, that He should repent; Has He said, and will He not do it? Or has He spoken, and will He not make it good?” [Num. 23:19.] “For truly I say to you, until heaven and earth pass away, not the smallest letter or stroke shall pass away from the Law, until all is accomplished.” [Mat. 5:18.]
Uniform (not relative as to person).
God’s nature as no respecter of persons is reflected in the uniformity of His laws. A uniform law is one which neither varies from person to person, nor is relative as to circumstance. That is, the law must not discriminately apply to some people but not to others.
God is no respecter of persons, that is, for the purposes of divine justice, God does not show anyone favoritism or partiality.
- “For the Lord your God is the God of gods and the Lord of lords, the great, the mighty, and the awesome God who does not show partiality, nor take a bribe. [Deut. 10:17.] And opening his mouth, Peter said: “I most certainly understand now that God is not one to show partiality.” [Acts 10:34.]
The law of nature applies to every person on the earth uniformly, since all people are uniformly the creation of God.
- Now we know that whatever the Law says, it speaks to those who are under the Law, that every mouth may be closed, and all the world may become accountable to God . . . for all have sinned and fall short of the glory of God . . .. Or is God the God of Jews only? Is He not the God of Gentiles also? Yes, of Gentiles also . . .. [Rom. 3:19,23,29.]
The uniformity of the law of nature is exemplified in the case of the Gentile nations whom God judged for various offenses against nature, even though they had not received the covenant law of Israel or any other verbal revelation of God’s law.
- “Do not defile yourselves by any of these things; for by all these the nations which I am casting out before you have become defiled.” [Lev. 18:24.]
Even God’s covenant law, within the jurisdiction of the covenant, applied to all men uniformly.
- “There is to be one law and one ordinance for you and for the alien who sojourns with you.” [Num. 15:16.]
Universal (not relative as to place).
God’s omnipresent nature is reflected in the universality of His law. A universal rule is one which is not relative as to place. That is, to the extent the lawmaker has territorial jurisdiction, all places within that jurisdiction must be governed the same.
God has unlimited territorial jurisdiction.
- Where can I go from Thy Spirit? Or where can I flee from Thy presence? If I ascend to heaven, Thou art there; If I make my bed in Sheol, behold, Thou art there. If I take the wings of the dawn, If I dwell in the remotest part of the sea, Even there Thy hand will lead me, And Thy right hand will lay hold of me. [Ps. 139:7-10.]
Since God has created the entire world, there is no place where the law of nature does not apply.
- The heavens are telling of the glory of God; And their expanse is declaring the work of His hands. . . . Their line has gone out through all the earth, And their utterances to the end of the world. [Ps. 19:1, 4.]
God governs all nations (and by implication, all places) to an equal degree.
- [God] made from one, every nation of mankind to live on all the face of the earth, having determined their appointed times, and the boundaries of their habitation . . .. [Acts 17:26.] “This is the plan devised against the whole earth; and this is the hand that is stretched out against all the nations. For the Lord of hosts has planned, and who can frustrate it? And as for His stretched-out hand, who can turn it back?” [Isa. 14:26-27.]
Historic understanding of law as a rule of action.
The law of nature was recognized as being permanent, uniform and universal.
- The law of nature, again, is unchangeable – even in the sense that it cannot be changed by God. [Grotius, Law of War.]
- This law of nature, being coeval with mankind and dictated by God himself . . . is binding over all the globe, in all countries, and at all times . . .. [Blackstone, 1 COMMENTARIES *41.]
- The law of nations, so far as it is founded on the principles of natural law, is equally binding in every age, and upon all mankind. [Kent, COMMENTARIES 2-4 (1827).]
Human laws, following the divine pattern, were also viewed as needing to be permanent, uniform and universal.
- Municipal law, thus understood, is properly defined to be “a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong.” . . . And, first, it is . . . something permanent, uniform, and universal. [Blackstone, 1 COMMENTARIES *44.]
OTHER FORMS OF SOVEREIGN WILL.
Although God’s law is an aspect of His revealed word, some things God has said are not in the nature of law. That is, not all expressions of God’s will, even those in verbal form, are permanent, uniform and universal in character. Some things God has said were directed to specific people, and were limited in their application to particular times or places.
Orders. God has often directed specific individuals to perform a specific task. These directions are inapplicable to people in any uniform sense, and are situation specific. Consequently, such a direction is not in the nature of a law, but in the nature of an order. The following are some examples of divine orders:
- And the Lord said to Joshua, “See, I have given Jericho into your hand . . . And you shall march around the city, all the men of war circling the city once. You shall do so for six days . . . then on the seventh day you shall march around the city seven times, and the priests shall blow the trumpets.” [Josh. 6:2-4.]
- And while Peter was reflecting on the vision, the Spirit said to him, “Behold, three men are looking for you. But arise, go downstairs, and accompany them without misgivings; for I have sent them Myself.” [Acts 10:19-20.]
Judgments. Similarly, God has often pronounced judgment on particular people or places as a result of some particular sin. Although the sins which were committed may have violated laws of general applicability, the sentences pronounced are not applicable to anyone other than the person specified in the judgment itself. Consequently, judgments are not law either, because they are directed to specific people and situations. The following are examples of divine judgments:
- Then the word of the Lord came to Elijah the Tishbite . . . “And you shall speak to [Ahab], saying, `Thus says the Lord, Have you murdered, and also taken possession?’ And you shall speak to him, saying, `Thus says the Lord, In the place where the dogs licked up the blood of Naboth the dogs shall lick up your blood, even yours.'” [1 Ki. 21:17, 19.]
- “Woe to you, Chorazin! Woe to you, Bethsaida! For if the miracles had been performed in Tyre and Sidon which occurred in you, they would have repented long ago, sitting in sackcloth and ashes. But it will be more tolerable for Tyre and Sidon in the judgment, than for you. And you, Capernaum, will not be exalted to heaven, will you? You will be brought down to Hades!” [Lu. 10:13-15.]
What law is not. Not all statements made by public officials are law, but only those things which are in the nature of a rule. Any law, to qualify as law, must be characterized as a rule, not as an order, advice or counsel, or a compact or agreement between private persons.
A rule is not “advice or counsel,” because a person is at liberty to follow advice or not, whereas law is mandatory solely because of its maker’s will. A rule is not a “compact or agreement,” even though it carries a binding obligation, because an agreement is a voluntary obligation assumed, whereas law is an involuntarily imposed obligation. A rule is not an “order,” because orders apply only to specified persons, whereas a law applies to everyone in the community.
- [Law] is a rule; not a transient sudden order from a superior to or concerning a particular person . . . for the operation of this act . . . has no relation to the community in general . . .. It is also called a rule to distinguish it from advice or counsel, which we are at liberty to follow or not, as we see proper, and to judge upon the reasonableness or unreasonableness of the thing advised . . .. Counsel is only matter of persuasion, law is matter of injunction; counsel acts only upon the willing, law upon the unwilling also. It is also called a rule, to distinguish it from a compact or agreement, for a compact is a promise proceeding from us, law is a command directed to us. The language of a compact is, “I will, or will not, do this;” that of a law is, “thou shalt, or shalt not, do it.” . . . In compacts, we ourselves determine and promise what shall be done before we are obliged to do it; in laws, we are obliged to act, without ourselves determining or promising any thing at all. [Blackstone, 1 COMMENTARIES *44-45.]
Not even all legislative enactments are law, if they fail to conform to the definition of a “rule.”
- A concurrent or joint resolution of legislature is not “a law”; a resolution of the house of representatives is not a “law”; an unconstitutional statute is not a “law.” When a statute is passed in violation of law, that is, of the fundamental law or constitution of a state, it is the prerogative of courts to declare it void, or, in other words, to declare it not to be law. [Black’s Law Dictionary, 4th ed., p. 1028.]
Since law is in the nature of a rule, not an order, orders are not law. Thus, it is recognized that the role of an executive (such as a president or governor) is to enforce, not promulgate, law. The executive branch of government can enforce judicial orders, or promulgate its own orders as to inferior civil officers. However, an executive cannot pronounce rules binding upon the general population.
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.
The modern view is that judges not only “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.
John Austin dismissed the Blackstonian view of case precedents (infra [§§54-57]) 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).]
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, Jr., The Common Law, at 1-2.]
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).]
The Biblical record.
The biblical record seems to suggest 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.
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.
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.”
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.]
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.
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.]
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.
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.]
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.]
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.
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.
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.]
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.]
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.]
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.
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).]
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.]
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.]
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.
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.]
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.]
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.]
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.
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.”
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.
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.
* Copyright © 1993, 2010 Gerald R. Thompson. Used by permission.