Editing Common law (section)

===="Legislating from the bench"====

At earlier stages in the development of modern legal systems and government, courts exercised their authority in performing what [[Roscoe Pound]] described as an essentially legislative function. As legislation became more comprehensive, courts began to operate within narrower limits of [[statutory interpretation]].<ref name=popkin/><ref name=interpretation>{{cite journal |last1=Pound |first1=Roscoe |title=Spurious Interpretation |journal=Columbia Law Review |date=1907 |volume=7 |issue=6 |pages=381 |doi=10.2307/1109940 |jstor=1109940 |quote=The object of genuine interpretation is to discover the rule which the law-maker intended to establish; to discover the intention with which the law-maker made the rule, or the sense which he attached to the words wherein the rule is expressed&nbsp;... the object of spurious interpretation is to make, unmake, or remake, and not merely to discover&nbsp;... it is essentially a legislative, not a judicial process, made necessary in formative periods by the paucity of principles, feebleness of legislation and rigidity of rules characteristic of archaic law. So long as law is regarded as sacred, or for any reason as incapable of alteration, such a process is necessary for growth, but surviving into periods of legislation, it becomes a source of confusion.}}</ref>

[[Jeremy Bentham]] famously criticized judicial lawmaking when he argued in favor of codification and narrow judicial decisions. Pound comments that critics of judicial lawmaking are not always consistent – sometimes siding with Bentham and decrying judicial overreach, at other times unsatisfied with judicial reluctance to sweep broadly and employ case law as a means to redress certain challenges to established law.<ref>{{cite journal |last1=Pound |first1=Roscoe |title=What of Stare Decisis? |journal=Fordham Law Review |date=1941 |volume=10 |issue=1}}</ref> [[Oliver Wendell Holmes Jr.|Oliver Wendell Holmes]] once dissented: "judges do and must legislate".<ref>''Southern Pacific Co. v. Jensen'', 244 U.S. 205, 221 (1917) (Holmes, J., dissenting).</ref>