Desktop version

Home arrow Law

  • Increase font
  • Decrease font


<<   CONTENTS   >>

LAWMAKING BY INTERPRETATION OF STATUTES

In interpreting statutes, judges help to determine the effects of legislative decisions. In most statutory cases, the courts have no trouble determining how to apply the statute, because the relevant law and evidence are very clear or fairly clear.

In some cases, however, the intent of a legislature is ambiguous. Some statutes contain unintentional errors and ambiguities because of bad drafting of the law. Other statutes are unclear because those who pushed them through the legislature sought to avoid opposition by being vague or silent on potentially controversial matters. An important reason for the lack of clarity in many instances is that the proponents have not been able to foresee and provide for all possible future situations. This provides the courts with an opportunity to engage in lawmaking. For example, antitrust statutes permit much judicial lawmaking, because Congress has set up only the most general guidelines. Exactly what constitutes a restraint of trade or monopoly practice are questions that courts must therefore determine. In doing so, they not only make law but also set explicit policy to guide other parties, such as businesses and government agencies, that are not directly involved in a case.

On rare occasions, judges find that all their efforts to discover the legislative intent of a statute are in vain. It is simply not clear how the statute applies to the case before them. In those cases, the judges must do just what they do when faced with a case for which no precedents exist: They must perform a creative act of lawmaking. This may well be exactly what the legislature, unwilling to prescribe details for an unknown future, counted on them to do. It is left to the judges to infer a purpose that is applicable to a particular case from what they know of the legislature’s broader purposes and of the shared purposes and aims of the community.

 
<<   CONTENTS   >>

Related topics