« Cafta Testimony | Main | Schelling's Points» Don Boudreaux
May 03, 2005
The Real Danger is Sovereign Power
Don Boudreaux
Should judges in America make law?
Conservatives especially say ‘no!’ A favorite conservative mantra is “judges should apply the law and not make law.” What they mean is that, in the U.S., the only proper law-making bodies are legislatures. Courts should merely ‘apply’ constitutional, statutory, and administrative directives to disputes at hand.
Of course, no serious person, conservative or not, denies that there are genuinely challenging practical problems in applying constitutional and statutory language in specific instances. But the modern conservative world-view has as part of its core a searing hostility to judicial discretion.
I’m sympathetic to this hostility to judicial discretion, but for reasons different from those expressed by many conservatives.
Here’s the thumbnail version of my view. I agree that judges should not make law. I disagree that judges should defer meekly to legislatures. No one should ‘make’ law. As much as possible, law should be ‘made’ by a decentralized process of human interactions. From this decentralized process, law emerges organically. Judges should discover this law and apply it.
The best law is organic – it evolves undesigned from countless interactions of ordinary men and women going about the everyday business of life. Without anyone designing a rule to, say, govern the allocation of automobile parking spaces in a crowded college parking lot, effective rules emerge to do so. For example, if you’re searching for a parking place and come upon another car stopped, with its turning signal on, near a parking spot from which a third car is just leaving, that parking spot goes to the driver of that other car.
I will not here attempt to prove anything; I rest content to report my sense that virtually all worthwhile laws are of this nature. The proscription against murder, for instance, was not first thought up by some genius or council and then promulgated and enforced. It emerged ‘naturally’ in human social interactions. Likewise with laws against theft, fraud, and arson. Likewise with the bulk of the law of property, contract, and tort. Likewise with commercial law. Even traffic law is surprisingly organic.
Trouble arises when a centralized authority claims a monopoly of society’s law-making powers. Legislation and bureaucratic directives become confused with ‘law.’ The will of the sovereign becomes mistaken for the laws of society.
Judges backed by a powerful sovereign can and do ‘legislate from the bench.’ But the real problem is not that unelected judges issue arrogant directives. The real problem is the sovereign power that empowers anyone – judge or legislature or administrative agency – to issue and enforce arrogant directives.
Conservatives are mistaken, in my view, to suppose that elected legislatures are less arrogant than unelected judges. Conservatives are also mistaken to believe that the elected branches genuinely represent the will of the people. (See the works of Kenneth Arrow, James Buchanan, Gordon Tullock, and Mancur Olson.) Left-liberals are mistaken to assume that smart, caring lawyers draped in black robes and who regularly read The New York Review of Books can or should engineer society for the better.
For a variety of prudential reasons it’s desirable – if sovereign power exists – to have its exercise shared among competing functionaries. But the modern American debate, in which those who want the exercise of sovereign power confined to legislatures are pitted against those who get all giddy and happy to imagine sovereign power being exercised freely by Really Smart Judges, misses the mark.
Posted by Don Boudreaux in Law | Permalink
TrackBack
TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d834518ccc69e200d834237a1f53ef
Listed below are links to weblogs that reference The Real Danger is Sovereign Power:
» Roberts On Decentralized Law from Catallarchy
Don Boudreaux thinks the best laws are not made:
I agree that judges should not make law. I disagree that judges should defer meekly to legislatures. No one should ‘make’ law. As much as possible, law should be ‘made’ by a decentralized pr... [Read More]
Tracked on May 3, 2005 10:59:22 PM
» Blogjam from Villainous Company
Via CommonSense & Wonder: "Nationally, we've found very little relationship between what's spent on schools and what the schools contribute to learning," said Eric Hanushek, a senior fellow at the Hoover Institution, a conservative think tank at Stanfo... [Read More]
Tracked on May 4, 2005 8:00:32 AM
» Who Makes Law? from MichaelGorsuch.org
Don Boudreaux brings a refreshing point of view to the tiring discussions on 'activist judges': Here’s the thumbnail version of my view. I agree that judges should not make law. I disagree that judges should defer meekly to legislatures.... [Read More]
Tracked on May 5, 2005 10:28:30 AM
» Persons of the Week: Howard University Students from olunteers Helped
olunteers Helped Clean Up Katrina-Ravaged New Orleans [Read More]
Tracked on Apr 5, 2006 2:23:15 AM
» MP3 Downloads, Full Albums, Latest Hits, MP3 Search from Global Media Search Engine
Big Mp3 Archive, Mp3 Search, Mp3 Albums, Mp3 Songs, Mp3 Software, Mp3 Traffic Exchange, Advertising... [Read More]
Tracked on Apr 5, 2006 3:17:54 PM
» Furniture search by phrase: Cushions from Searching the Catalog
Modern furniture design store : Contemporary lighting, cool accessories and ... with the exact phrase. with at least one of the words. without the words ... [Read More]
Tracked on Apr 9, 2006 1:30:01 PM
» Finance Search Online: ardent insurance kevin brunson from Business Finance Online
Business Finance Online Product/Service Directory. Search for business finance related products and services by browsing the directory of business finance ... [Read More]
Tracked on Apr 28, 2006 9:57:59 AM
» Europages, European directory from Open Directory Project
Multilingual european business directory, 600000 european companies, european company directory and business opportunities, trade leads, ... [Read More]
Tracked on Apr 29, 2006 12:56:23 AM
» Library of Congress WWW/Z39.50 Gateway from Harvard Seismology: Centroid Moment Tensor Catalog
Contents: Search Library of Congress Catalog | Search Other Catalogs | About the Z39.50 ... Library of Congress Online Catalog. Simple Search (any keyword) ... [Read More]
Tracked on Apr 30, 2006 12:45:24 AM
» SmartPhone Today: Orange SPV E200 from Smartphone Reviews; Best SmartPhones
The Internet's 3rd Party information center for SmartPhone Shareware, SmartPhone Freeware, Reviews, Hardware, Discussion, and more! Updated Daily... [Read More]
Tracked on Apr 30, 2006 12:04:15 PM
» Steroid lotion effective for eczema in young kids from and to use in
the authors explain in the Journal of the American Academy of Dermatology.
[Read More]
Tracked on May 1, 2006 12:21:48 AM
» All services on the Internet from Internet - Wikipedia, the free encyclopedia
All services on the Internet make use of defined application protocols. ... Similar to how the commercial Internet providers connect via Internet exchange ... [Read More]
Tracked on May 20, 2006 3:53:26 AM
» Jewelry Shop from Jewelry making, Tips from The Jeweler's bench - Jewelry making
The Gem and Jewelry World's foremost Resource on The Internet. ... The Jeweler's Selected Bibliography. Add Ganoksin Power Search to your website ...
[Read More]
Tracked on May 20, 2006 4:31:37 AM
» Bow Down to George Bush the Decider! from verturning 750
verturning 750 laws since 2000 (By Mark Fiore) [Read More]
Tracked on May 27, 2006 2:46:21 AM
» Month later, Pedro the ace still looking for winning hand from starters on the
be baseball the way it's played in this pumped-up century. A pitching duel - you remember, [Read More]
Tracked on Jun 6, 2006 2:41:29 PM
» Ecuador secure berth in knockout stages from rivals Costa
beat Group A rivals Costa Rica 3-0 to qualify for the second phase of the World Cup for the first time in their history. [Read More]
Tracked on Jun 18, 2006 1:17:28 PM
» Call to label hidden fats in food from labels should
labels should list dangerous fats to help reduce coronary heart disease, say scientists. [Read More]
Tracked on Aug 7, 2006 12:19:23 PM
