Judicial Law-Making

Abstract

Olivecrona maintains that courts necessarily create law when deciding a case. The reason, he explains, is that judges must evaluate issues of fact or law in order to decide a case, and that evaluations are not objective. Although he is not explicit about it, he appears to reason that if courts have to evaluate issues of fact or law in order to decide a case, and if evaluations are not objective, so that there is no uniquely correct way to evaluate, then the existence or content of law, or both, will depend on evaluations none of which is more correct than the other; and this means that there will be no law for the court to apply prior to the evaluation. And if courts cannot apply pre-existing law, they have to create new law. I am not convinced by Olivecrona’s line of argument, however. The problem is that Olivecrona uses the term “evaluation” in a broad enough sense to cover not only evaluations, including moral evaluations, but also considerations that are not evaluations at all, and that therefore his claim that judges must evaluate issues of law or fact in order to decide a case is false. I also consider and reject the possibility that Olivecrona has in mind not evaluations, but rather conventions, and that therefore he is really saying that the existence of legal norms and legal relations is a matter of convention, as distinguished from brute facts of nature. But this interpretation of Olivecrona’s reasoning is quite problematic, because the judgment that a certain operative fact is at hand is not always a conventional judgment and because conventional judgments, unlike moral judgments, are, or at least can be, objective in the sense of constructivist objectivity.