JUDGE-MADE LAW. A phrase used to indicate judicial decisions which construe away the meaning of statutes, or find mean ings in them which the legislature never in tended. It is sometimes used meaning, simply, the law established by judicial prec edent. Cooley, Lim., 4th ed. 70, n. See Austin, Prov. of. Jur. where the neces sity of judicial legislation and its uses are discussed in extenso.
The expression judge-made law is un doubtedly more frequently used In the for mer sense, and as expressing a certain degree of opprobrium. It Is, however, unavoidable that in the distribution of powers which is now recognized as a necessary element of civilized government, there should be found at times some uncertainty as to the line of demarcation between the legislative and judicial powers as well as between each of them and the executive. The necessity of what is called judge-made law in the proper sense, and the possibility of its existence in the other sense, arises from the power of construction which necessarily exists, and though salutary when properly exercised, is susceptible of abuse, and in such case, diffi cult, if not impossible, to remedy. Of this power of construction it has been said that it "is a mighty one, and, unrestrained by set tled rules, would tend to throw a painful un certainty over the effect that might be given to the most plainly worded statutes, and ren der courts, in reality, the legislative power of the state. Instances are not wanting to confirm this. Judge-made law has overrode the legislative department. It was the boast of Chief Justice Pemberton„ one of the judges of the•despot Charles II., and not the worst even of those times, that he had entirely out done the parliament in making law." Spen cer v. State, 5 Ind. 41, 46. A writer thus characterizes that kind of judicial legisla tion which is necessary and proper under such a system as the common law : "Al though it is considered necessary in all free states to keep the legislative, executive, and judicial powers for the most part separate, and all our American constitutions provide for this, yet it cannot be completely done.
The judges, it is well known, actually make a great deal of law, and this judicial legis lation cannot be avoided, and indeed much of the best work that we get in this line is done by them. But this they do as delegates of the sovereign people, as much as congress or the state legislatures ;" Terry, Anglo American Law 11.
Mr. Bishop earnestly contends that there is no judge-made law ; he says that "law preceded writing, and no writing can be made comprehensive enough to include all law, and no blundering of the judge is so monstrous as denial of right to a suitor who is simply unable to find his case laid down in the statute law or in a previous decision." His view is that more errors are committed by failure to administer justice according to "the general principles of our jurispru dence and the collective conscience of man kind," for want of statute or precedent, than in all other ways. The common-law system was built up when there were few statutes and the judges derived "principles for their decisions from the known usages of the coun try and from what they found written by God in the breasts of men." Such, he con siders, should be the action of judges now, and he assumes that they will always find principles on which to adjudicate any matter unprovided for by statutes or previous de cisions. He argues that in view of "the ceaseless variety of changes in human af fairs," while precedents are properly fol lowed, yet, now, as in the earlier periods, they have not covered the entire ground, and it is absurd that questions of right or remedy should depend, not upon the abstract right or the convenience or propriety of a decision either way, but "solely on the accident, whether it arose in early times, received then an adjudication, and the adjudication found a reporter." 1 Bish. N. Cr. L. §§ 18, 19.