On the Place of Judge-Made Law in a Government of Laws

Abstract

This essay explores a constitutional account of the elevation of the judiciary in American states following the Revolution. The core of the account is a connection between two fundamental concepts in Anglo-American constitutional thinking, discretion and a government of laws. In the periods examined here, arbitrary discretion tended to be associated with alien power and heteronomy, while bounded discretion was associated with self-rule. The formal, solemn, forensic, and public character of proceedings in courts of law suggested to some that judge-made law (a product of judicial discretion under these proceedings) did not express simply the will of the judge or the ruler, but the law of the community. This view may explain why the new American republican regimes elevated their judiciaries, insulating them from political control, while at the same time reforming judicial procedures and trimming traditional jurisdictions to exclude matters that invited judges to exercise an arbitrary discretion.

Keywords: government of laws, rule of law, judge-made law, common law, John Adams, separation of powers