i choose reason based on evidence. i have no need to do contortions to make a inner need to believe fit what other men have told me to believe based on a 2000+ year old book that we have no idea who wrote.
I'm going to try an analogy, and understand that the analogy is not perfect. Say some painting by Jackson Pollock was found, or some sonnet by Shakespeare were found. Never been see or read before. What does the abstract art mean? What was Shakespeare actually trying to say? Impossible to know, the artists of both are dead. So we look to the "experts" in abstract art, and in Shakespeare's plays, and they provide their expert opinion on the way in which the painting and sonnet should be read/viewed and understood, how the art should be applied. Are the experts right? Not necessarily, but there is a custom of having experts tell the average person what to think, feel, understand of art. Law, as precise as it can be, is in English, which is a language very subject to interpretation, context, etc. Judges and courts do their best to frame the language of the law (that they did not create) into a format that can be applied to cases in the present, and their work extends by way of precedent into the future. The art expert shaped the opinions of Pollock's work, but they did not paint it. They did not create the art, but they gave their expert opinions of it. Most will accept the experts opinion, others will say they are full of crap, that Pollock meant nothing of the sort, and that is why we have arguments over what is produced by mankind...because of the personal and subjective nature of language, intent, and meaning of the person creating the art. Judges are skilled experts in opinion, but not skilled lawmakers...as their job is not to make the law, but rather to interpret the law as they see it according to the cases before them, the opinions of the past, and their own human nature.
Fine, fine, fine. You made a person choice of a particular belief system. You think it is superior to other belief systems. But you don't really know for your own self the ultimate truth, and you don't really know the truth for anyone else, do you? Just a human choice you made, from a flawed and fallible human mind, right?
what is lost on you... is that you seem to have a simplistic understanding of law. You think in order for it to be law... it must say CCP or CC section or U.S. Code in front of it. but judges were making law before we had codes. judges were making law before we had a country judges were making the common law in England Our country received the common law eventually that common law was codified judges still make law and I gave you great examples of it. If you wish to remain willfully ignorant of what Common Law is. it does not bother me. But there is a sentence you cant deny. Common Law is judge made law.
What is lost on you, is that you think you are right...in your opinion...not in fact. Constitutional scholars, who have dedicated their lives to the study of the law...don't all agree, they have major disagreements. So you disagree, and that makes you right? Talk about self inflated...and you can live in the past of common law made by judges, but I am talking about America post Constitution. In our system of government, judges and courts do not make law, they interpret the law, give opinions, set precedent on how to rule on the law going forward, etc. Try to put your mind into the 21st century for a change...
777 judges do not make the law de jure, but if they make a ruling of a certain type of interpretation if does become law de facto. Many cases to support that assertion. Almost every civil rights ruling in fact was a de jure ruling that made de facto law.
Defacto schmaechto.... The rulings of a judge in our court are not laws....they are opinions on the cases they are evaluating, and set a precedent on how to interpret the law before them (that they did not write). So judges don't make laws, they make decisions on how the law before them stands up to their view of the legal process and existing laws. Their job is to render opinions, not write laws...and they don't make laws. The decision on Rowe vs. Wade did not make a law, it only made an underlying right of privacy the primary point which rendered abortions legal. You may think it is just semantics, but it is much subtler than that. It is about the process by which we have a balanced checks and balances methodology between the three branches of government. The system we have is as good as it gets for reason to trump the self righteous opinions of those who think their read, their fundamentalist and constructionist read is the absolute truth...which does not exist in the world of men and law. Of course I would put the word of God before the reason of man, but no one has yet show effectively that their ability to know what God wants is accessible to the human race. So we are left with a system designed by reasonable men to govern both reasonable and unreasonable men and women. Civil rights cases were opinions on the Constitution, and they could be overcome with constitutional amendments by a super majority. So did their rulings be come law, or did they just reveal the underlying spirit of the Constitution? I vote the latter...for what already existed, but was hidden or obscured, was not created by the person who unearthed it.
Not only do state-court judges possess the power to "make" common law, but they have the immense power to shape the States' constitutions as well. See, e.g., Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999).
The state-court judges don't make law, the interpret the existing laws presented to them in the cases they hear. They uncover what they believe is the real meaning of the law...they are not lawmakers.