Judge-Made Law
1. Terminology
Judge-made law is law laid down by the courts. French and German lawyers speak of droit prétorien and Richterrecht, respectively. Frequently they also use the collective noun for the judiciary (la jurisprudence, die Rechtsprechung) to designate the sum of judicial decisions that have legal effects beyond the actual facts of the decisions. Since the law in question arises from cases decided by the courts, the term ‘case law’ or Fallrecht is used synonymously. The effect of these cases on subsequent decisions is ‘precedential’ or präjudizierend, whence the term ‘precedent’ or Präjudizienrecht.
2. Problems associated with judge-made law
In modern states judge-made law primarily raises constitutional issues. According to the doctrine of the separation of powers, the legislative and the judicial functions must be strictly separated and performed by different institutions. Viewed against this background, lawmaking by the judiciary appears to be a usurpation of powers that are reserved for the legislature. Since judges, as opposed to members of legislative assemblies, usually have no democratic legitimacy, judge-made law also seems to violate fundamental values of modern democracy. Finally, judicial lawmaking is problematic with regard to the rule of law: in contrast to decisions that are predetermined by legislation, the rules emerging from a court in a particular case are not necessarily predictable for the citizen. Closely related to the issue as to whether the courts have the power to make law is the question to what extent, if any, judge-made rules should be legally binding in future cases (precedent, rule of).
3. Judge-made law in England
In England and in the other common law systems, judge-made law has always been acknowledged to be a source of law in addition to statutes and customary law. Until far into the 20th century the legislatures of these countries exercised their lawmaking powers rather sporadically. The making of new law, particularly in the area of private law, was mostly left to the courts. From the late 16th century onwards this practice was increasingly criticized as undermining the constitutional position of the Sovereign. In response, it was argued that judges were not in fact making law but were only ‘declaring’ the common law that they found and that had been in existence since time immemorial. Obviously, this ‘declaratory theory of law’ relies on a fiction. During the 19th century it was superseded by a doctrine that can be traced back to John Austin. According to Austin, the judges were merely assisting the sovereign lawgiver who had tacitly delegated a part of his powers to them. Be that as it may, in the course of the 19th century the courts were much more reluctant to exercise their lawmaking powers than before. The ‘judicial self-restraint’ of the English courts is probably one of the most important reasons why the role of the judiciary has never been seriously challenged. Concerns of judicial arbitrariness were alleviated by the consolidation of the rule of precedent (precedent, rule of) which ensured that decisions were binding on subsequent courts. From about the middle of the 20th century the judiciary once again increasingly engaged in lawmaking. At the same time the strict binding force of precedent was relaxed, and today British judges admit their lawmaking function more openly than in the past. At the same time, they are increasingly faced with criticisms of ‘judicial activism’.
4. Judge-made law in continental legal systems
The point of departure of medieval and early modern laws on the Continent resembled that of England: judge-made law was of enormous practical importance in view of the relatively modest production of legislation. However, in the wake of the reception of the Corpus Juris Civilis and with the increasing enactment of territorial legislation there was much less space and need for judicial lawmaking, particularly from the late 18th century onwards when the major codifications came into force. Following the French revolution the constitutional concerns mentioned at the outset of this entry were brought into sharp relief. These militated in favour of cutting down the judicial function to that of pure application of the law. France developed what has been called a ‘cult of legislation’, whilst in Germany legal scholarship assumed the leading role in creating and further developing the law. Recent historical research has shown that the ideology of the judge as being the mere ‘mouthpiece of statutory law’ (bouche de la loi) that was frequently invoked and attributed to Montesquieu did not consistently prevail during the 19th century, so that there were indeed occasions where the courts made law. However, the creative function of judges (le pouvoir créatif ou normatif du juge) was normally played down, and it was emphasized that they were bound by the written law. It was only towards the end of the century that lawyers began to see judge-made law as an inevitable, if not necessarily desirable, phenomenon.
The 20th century was marked by an increasingly self-assured judiciary. Particularly in France this development was related to the fact that the Code civil of 1804 and the other great codifications did not provide answers to the novel social, economic and technical issues of the day. In Germany the public at large became aware of the factual importance of judge-made law in the 1920s when the Reichsgericht attempted to provide a solution to the trauma of inflation without substantial reference to the Bürgerliches Gesetzbuch (BGB). In Switzerland, the widely discussed Art 1(2) Swiss Civil Code (ZGB) had already sanctioned judicial rule-making, at least to a limited extent. Following World War II the lawmaking function of the courts could no longer be ignored, not least because of the politically exposed role of the constitutional courts. The judiciary now openly claimed the competence of creating law, and many of today’s legal writers actively advocate the acceptance of judicial lawmaking or are at least resigned to acquiesce to it (see the labour lawyer Franz Gamillscheg: ‘Judge-made law remains our fate’—Richterrecht bleibt unser Schicksal). Mainstream accounts of legal methodology, however, still maintain that case law is not a source of law proper (Rechtserzeugungsquelle), but rather a mere ‘source for the recognition of law’ (Rechtserkenntnisquelle). Instead of ‘judge-made law’ (Richterrecht) the label ‘judicial further development of the law’ (richterliche Rechtsfortbildung) is preferred—giving less prominence to the interventionist approach of the judiciary. This reluctance is all the more surprising in view of the fact that continental legal scholarship has all but abandoned its claim to leadership with regard to systematizing, structuring and providing authoritative interpretations of the law and is mostly content with accepting the results of judge-made law and integrating them as seamlessly as possible into the broader framework of the law. This development is, for example, evident in German constitutional law where, according to the phrase coined by Bernhard Schlink, a ‘dethronement of constitutional law scholarship by the constitutional judiciary’ has occurred.
5. Judge-made law in European private law
European Union law initially followed the continental tradition and denied judge-made law the character of being a source of law. The European Court of Justice (ECJ) attempted to emphasize its subordination to written EU law by adopting the deductive and laconic style of judgments in the French tradition. However, the ECJ quickly emerged as the motor of the development of Union law. Its bold judgments brought into existence an EU constitutional law framework that had hardly been sketched out by the Founding Treaties. Today, judge-made law is seen as a part of EU law that has no less importance than EU legislation, and its status as a source of law is widely acknowledged.
To some extent, European private law also derives from ECJ case law, mostly in the areas covered by EU directives dealing with private law matters. However, some of the court’s groundbreaking decisions in the area of private law were also rendered on the basis of the Founding Treaties, eg concerning the validity of agreements in restraint of competition or the scope of the principle of anti-discrimination. The ECJ also developed general principles of law in the area of private law, frequently by drawing on the experiences of national legal systems, eg with regard to combating abuses of law or inconsistent behaviour (estoppel, venire contra factum proprium).
The case law of the ECJ increasingly influences the private laws of the Member States. This impact not only concerns the interpretation and further development of directly applicable EU law (as laid down in the treaties and in regulations), but also applies to the ECJ’s case law on directives (which the courts of the Member States must take into account in interpreting domestic law that is within the scope of such directives). This, in turn, frequently forces national courts to develop their own case law. Similarly, domestic private laws are increasingly subject to change, so as to make them comply with the case law of the European Court of Human Rights (ECtHR).
Literature
Josef Esser, Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts (1956; 4th and unamended edn, 1990); John P Dawson, The Oracles of the Law (1968); Wolfgang Fikentscher, Methoden des Rechts in vergleichender Darstellung, 5 vols (1975–1977); D Neil MacCormic and Robert S Summers (eds), Interpreting Precedents (1997); Reiner Schulze and Ulrike Seif (eds), Richterrecht und Rechtsfortbildung in der Europäischen Rechtsgemeinschaft (2003); Philippe Jestaz, Les sources du droit (2005); Stefan Vogenauer, ‘Zur Geschichte des Präjudizienrechts in England’ [2006] Zeitschrift für Neuere Rechtsgeschichte 48; Ulrike Müßig, ‘Geschichte des Richterrechts und der Präjudizienbindung auf dem europäischen Kontinent’ [2006] Zeitschrift für Neuere Rechtsgeschichte 79; Stefan Vogenauer, ‘Sources of Law and Legal Method in Comparative Law’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (2006) 869; Brice Dickson, Judicial Activisim in Common Law Supreme Courts (2007); Ewoud Hondius (ed), Precedent and the Law: Reports of the XVIIth Congress, International Academy of Comparative Law, Utrecht, 16–22 July 2006 (2007); Arthur S Hartkamp, ‘ECJ and European Private Law’ (2008) 16 ZEuP 449.
