Judge-made Law

Student thesis: Doctoral Thesis

Abstract

This dissertation discusses the mechanism in which judges create judge-made law in a common- law country. Judge-made law is not created by explicit legislation. Rather, judges create them through their rule-following actions. The term rule-following1 suggests that the action presupposes certain pre-existing rules. If the action in question follows those rules, such actions might not sound capable of generating any new rules. Instead, judge-made law might be thought of as accidentally produced rules when judges cannot find any pre-existing rule to follow or when judges deliberately ignore existing rules. On the contrary, I wish to argue that following pre-existing rules generates new rules no less than declaring new rules does. The dissertation identifies the mechanism in which judges create judge-made law in terms of the communication between the speaker (judges) and the hearers, which consists of the transmission of the four information packages from the speaker to the hearers: the ascription, antecedent, transition and authority packages. The approach this dissertation takes has two characteristics: it is both agent-focused and mental-focused. The information about such reasoning and assertions is not limited to the content of the rule that the speaker follows. The abondance of information the hearers work out as the speaker’s normative attitudes justifies the agent-focused, or practice- focused approach. The open-ended nature of practical reason and the existence of disputes and gaps prompt the hearers to work out more implicit assertions of the speaker. This dissertation’s approach is also mental-focused because it primarily focuses on the information intersubjectively exchanged between the speaker and hearers. In this approach, the hearers obtain the information about the speaker like how a computer decodes information by using the key information. The speaker’s externally observable actions and utterances serve as the key information that enables the hearers to decode further information about the speaker’s reasoning and assertions. The dissertation accounts for the mechanism of judicial law-making by breaking it down into the following two questions: (1) why can rule-following actions generate new rules?; (2) why do the hearers take such new rules as law, when judges generate them? The summary of this dissertation’s response is as follows; (1) Rule-following actions can generate new rules due to the hearers’ ability to decode the three different packages of information. When the speaker follows, applies, or uses a rule, they invoke a pattern of reasoning by using certain normative vocabularies or because the utterance is made in a particular context. This pattern of reasoning is shared by the hearers as the speaker’s presupposition. From the shared presupposition, the hearers can further decode not only the speaker’s ascription of normative status (to the speaker themselves or someone else) (the ascription package) but also, depending on the context, the speaker’s assertion about the validity of transition from a rule to the conclusion (the transition package) and their assertion about the antecedents of a rule, such as its validity (the antecedent package). (2) Judges implicitly commit themselves to their future ascriptions. In John Searle’s terminology, these are indirect commissives, through which judges can raise the hearers’ expectations of future ascriptions. I argue that the capacity to perform indirect commissives is the basis of judges’ authority in law-making.
Date of Award2023
Original languageEnglish

Keywords

  • jurisprudence
  • Common Law
  • Judge-made Law
  • Pragmatism
  • Public Law

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