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What are the disadvantages of judge made law, relative to statute law?

There are at least two main disadvantages of judge-made law relative to statute law.  One disadvantage has to do with the legitimacy of such law while the other has more to do with pragmatic issues.


In pragmatic terms, law made by judges will not be able to touch on as many issues at as many times as statute law can.  Judges can only make law when cases come before them.  They cannot go out and change laws simply because they want to.  In addition, they cannot rewrite laws based on whatever they feel is best at a given time.  Instead, they can only rule on specific issues raised in their cases.  For example, let us look at “Obamacare.”  Judges could strike down certain portions of the law if they wanted, but they only if plaintiffs brought cases that touch on those portions of the law.  In addition, judges would not be able to replace the law with something they liked better.  They would only be able to invalidate the law as it currently stands.


In terms of legitimacy, the disadvantage of judge-made law is that it will not seem as legitimate and democratic to many people.  Many judges are not elected.  Even those who are do not interact with other judges to debate and to make laws through consensus.  This is in contrast to the legislative branch.  In this branch, all lawmakers are democratically elected and will therefore seem legitimate to the people.  In the legislature, lawmakers get together and discuss and debate ideas.  From these interactions come laws.  This process is much more likely to make people feel satisfied with the laws.  They will respect the laws more because those laws have been created by elected officials who have been able to discuss and debate them.  They will not feel that way as much about laws that have been made by, at most, a handful of judges who are often not elected.


For these reasons, laws made by judges are generally at a disadvantage compared to statute laws.

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