The Law

Are judges umpires or do they make law? According to a new book reviewed by Stanley Fish in today's New York Times, the answer is "yes."

In the book, “Beyond the Formalist-Realist Divide: The Role of Politics in Judging,” Brian Z. Tamanaha first describes the supposed conflict that people imagine — on the one hand “self-applying legal rules,” on the other “judges pursuing their personal preferences beneath a veneer of legal rules” — and then debunks it. According to Fish's review, the key to understanding what a law means is to understand its purpose. Disagreements about a particular law, often couched in arcane legal language, usually mask disagreements about the very purpose of the law. The language of laws frequently fails to illuminate the underlying purpose, probably because the legislators themselves disagree on that score.

I doubt there will ever be a solution.