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53 Hastings Law Journal 1205 (2002)


The role of the judiciary is to adjudicate disputes according to law. Adjudication involves three functions: fact determination (done mostly by the trial court), law application and law determination. The third function-law determination-does not involve, in most cases, any creation. The law is known and determined. The court merely declares what the law is. The court is, in the words of Montesquieu, a "mouth that pronounces the words of the law."1 However, there are hard cases. In such cases, the law is uncertain. There is more than one meaning to be given to the legal text. There is more than one solution to the legal problem. In such cases, law declaration also involves law creation. Prior to the judicial determination, the law (the constitution, the statute, the common law) spoke-even after all rules of interpretation were used-with a number of voices. After the judicial determination the law speaks with a single voice. The law was changed. A new meaning was created. The creation of a new norm-to be binding on all courts by the rule of precedent-is the main function of the supreme court in a democracy. Such creation involves discretion. The judge of a supreme court is not a mirror, passively reflecting the image of the law. He is an artist, creating the picture with his or her own hands. He is "legislating"-engaging in "judicial legislation." He does so in concrete cases, as an incidental and interstitial outcome of the adjudicative function.

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