An age-old question that still plagues legal theorists is whether judges “make” law when they adjudicate. Sir William Blackstone believed that judges do nothing more than maintain and expound established law (Commentaries on the Laws of England); other writers vehemently disagree. Some legal analysts maintain that the law is whatever judges declare it to be. Echoing those sentiments, President Theodore Roosevelt asserted that “the chief lawmakers in our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret … they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental, they give direction to all law-making” .
Supreme Court Justice Cardozo, writing in The Nature of the Judicial Process, argued that the law is evolutionary and that judges, by interpreting and applying it to specific sets of facts, actually fashion new laws.
Whether judges are seen as making law or merely following what came before, they are required to operate within narrow strictures. Even when they are deciding a case on the basis of first impression (a question that has not previously been adjudicated), they generally try to analogize to some existing precedent. Judges often consider customs of the community; political and social implications; customs of the trade, market, or profession; and history when applying the law. Some, such as Justice Oliver Wendell Holmes and Justice Cardozo, thought that considerations of social and public policy are the most powerful forces behind judicial decisions.
A hearing in which the parties are given an opportunity to present their evidence and arguments is essential to an adjudication. Anglo-American law presumes that the parties to the dispute are in the best position to know the facts of their particular situations and develop their own proofs. If the hearing is before a court, formal rules of procedure and evidence govern; a hearing before an Administrative Agency is generally less structured.
Following the hearing, the decision maker is expected to deliver a reasoned opinion. This opinion is the basis for review if the decision is appealed to a higher tribunal (a court of appeals). It also helps ensure that decisions are not reached arbitrarily. Finally, a well-reasoned opinion forces the judge to carefully think through his or her decision in order to be able to explain the process followed in reaching it.
Adjudication of a controversy generally ensures a fair and equitable outcome. Because courts are governed by evidentiary and procedural rules, as well as by ‘stare decisis’, the adjudicative process assures litigants of some degree of efficiency, uniformity, and predictability of result.The purpose of adjudication is to provide justice to the aggrieved party in any said dispute. Parties come to Court only when any alternate dispute mechanism doesn’t work. The experience of the Judges, who are the adjudicators, in deciding the cases, helps in determining the ‘right’ decision and granting relief to one of the parties.
No time is wasted with partisan tactics and delays. It commences immediately with an analysis of the applicable legal authorities and identification of the evidence that supports the positions of each party to the dispute. The adjudicator promptly examines material witnesses under oath in the locations where they are found.
