Judicial Law Review and Policy


The law is the law made and enforced by governmental or social institutions to govern behavior, usually with an objective of punishing wrongdoers. It is a matter of long-standing debate and, in general, has been differentially defined by different persons, including those who refer to it by different names (including legal professionals), in light of their own knowledge and preferences. For example, there are some who refer to the law as an institution, others as a set of rules, and still others as a body of judgments and principles. Yet, as law, even when used in particular contexts, is a body of knowledge that describes reality, there is reason to view law as having two distinct concepts, although these may overlap.

Under the common law, there were private courts and public courts, which court established for private interests under the state law. Thus, although public and private courts operated under the same law, the legal system was characterized by different institutional characteristics, including (but not limited to) different law courts, juries, administrative agencies, legislation, statutory law, and privileges and immunities. Private law courts typically had juries to decide guilt and were subject to statutory law. They also had extensive privileges and immunities and enjoyed greater freedom of administration than did public courts.

Statutes of limitations, for example, were a common feature of the common law. These statutes provided periods within which a defendant could institute a suit against another person. Periods within which criminal law could be enforced were generally measured from the time of commission of the crime. The federal system had different periods of years for enforcing criminal law than did the state systems. This distinction sometimes became very explicit in the formulation of criminal statute, for example, the federal educational statute of twenty years whereas the stateside common law allowed the courts to impose a penalty for a criminal conviction at any point within a defendant’s life, irrespective of the period within which the crime had been committed.

Developments in modern law have tended to complicate the picture somewhat. Today the courts afford broad latitude to a litigant’s argument that his or her rights were violated by elements within the jurisdiction of the courts. In doing so, however, they are often unwilling or unable to distinguish between traditional criminal laws and civil laws that are not aimed at imposing and preserving a body of common law rule. Thus, for example, the courts today routinely allow drug manufacturers to circumvent the requirement that they create drugs intended for medical use, in order to circumvent the requirement that they warn the public about the health hazards associated with the drugs’ potential side effects. It is only in recent years that the courts have begun to recognize a right to an adequate level of warning when it comes to drugs meant for human consumption.

One reason why the development of the common law has been so uneven throughout the country is because, unlike the judicial system, the common-law courts were designed to function as a brake on executive power. The judges in this system limited the power of the Crown. English Common law, however, has always been somewhat different in the way that the courts have handled various types of cases. Despite this difference in methodology, the ultimate result has been the same: executive power has never been more closely allied to the levers of power within the legal system itself.

The courts do not simply rubber-stamp executive power. Rather, the legislature is responsible for the formulation of statutory laws and the enforcement of those laws. In order for a statutory law to become law, it must undergo two important stages: adoption and operation. Adoption refers to when the legislature decides that a law should be made into law. Once it is adopted, it can only be changed by subsequent legislation.

Operations normally happen at a much later stage. Once the legislature has adopted a new law, it must enact it into effect by either issuing an order-of-entry or, if the Statute of Limitations has lapsed, calling a session of the General Court. Then, after receiving a copy of the Statute of Limitations, the courts will attempt, by reference to their Constitutions, to determine whether or not the new law violates any of the preexisting laws. If it does, the court will either uphold the law or strike it down.

The creation of statutory laws and their subsequent interpretation by the courts occur within the framework of the overall body of law known as judicial law. Each of these levels of law is dependent upon the operation of other preexisting law. For example, the decisions of lower Federal Courts generally affect lower Federal statutory law. However, the decisions of higher Federal courts generally impact higher Federal statutory law.