Dear Lawyer Mark: I am sick and tired of activist judges. I don’t understand how they can ignore the law and make their own rules as they go along. I thought that our representatives made the laws, and that everyone had to follow them. How do activist judges get away with making up new law to fit what they want to happen? — Hacked Off in Hecla

Dear Hacked: What you are generally speaking about is the fact that we in the United States (except Louisiana) operate on the “common law” system, like Great Britain, rather than “civil law” system that continental European countries use. Under the common law system, judges do not ignore the law, but they are required to interpret the laws and fill in the gaps if a statute is silent or ambiguous on a point.

As these decisions and reasoning are adopted on appeal, they become binding precedent on all courts below them, which means that any lower court in their jurisdiction must follow that interpretation of the law.

The common law system recognizes that legislatures are not in the best position to account for every possible scenario in a given situation, and allows the law to grow and change as circumstances change.

For instance, personal injury law is almost all common law, and there are very few statutes that deal with it. To sue someone for an injury, you must show that they owed you a duty of care, that they violated that duty, and that you were injured because they violated that duty.

These elements were established by the courts and have been in place for many years, but are still applied to each case and interpreted according to the facts of the case when compared to other similar cases.

An example might be that someone is speeding down the street, runs a red light, and hits another car. At first glance, it appears clear that they should be liable for any injuries to the person hit. There are statutes against speeding and running red lights, and the driver obviously ignored them.

However, let’s say that the speeding vehicle was an ambulance responding to an emergency, had lights and sirens on, and the other driver should have seen and heard them coming, but was too busy talking on his cell phone to look before entering the intersection. Now imagine a legislature trying to write a statute covering that scenario, rather than allowing the courts to craft solutions as the facts change from case to case.

The other judicial activity that tends to upset people is when a judge finds a legislative act unconstitutional. In these cases, the judges aren’t actually ignoring the law or going against the law, but rather they are upholding our founding document that defines the fundamental relationship between our government and citizens: the Constitution.

In all things, the Constitution is the supreme law of the U.S. and our Supreme Court’s interpretation of it prevails over all other activities of the government.

In this case, one’s opinion of the judge typically doesn’t come down to politics in the conservative/liberal sense, but rather usually comes down to whether you liked the legislation or not:

If you hated the legislation, the judge was taking a heroic stand against an overreaching legislature to protect our Constitution; if you loved the legislation, then the activist judge was usurping the power of the legislature in what amounts to be a coup d’état.

Thought for the Week: “To live under the American Constitution is the greatest political privilege that was ever accorded to the human race.” — Calvin Coolidge

It’s The Law is written by attorney Mark K. McCown in response to legal questions received by him. If you have a question, please forward it to Mark K. McCown, 311 Park Avenue, Ironton, Ohio 45638, or e-mail it to him at LawyerMark@yahoo.com. The right to condense and/or edit all questions is reserved.