It is common in politics to criticize courts for “legislating from the bench”. The argument is that courts have no role in formulating broad public policy.
For most of the legal history of this and other English speaking countries in many areas of the law there was no legislation on point. Instead, the courts developed rules over time. These laws are often referred to as common law.
Common law developed in the area of torts – i.e. civil wrongs, which includes personal injury. This still forms the basis of personal injury law to the extent the legislature has been silent.
The debate over the roles of the courts goes on today within the court system as well as in society as a whole. Consider the following two quotes from concurring opinions on the same case.
Tort law is overwhelmingly court-developed common law. Statutes influence tort law, either by creating standards of behavior or by explicitly changing substantive law rules previously developed by courts. W. Keeton, D. Dobbs, R. Keeton & D. Owen, PROSSER AND KEETON ON TORTS 3, at 19 (5th ed. 1984). Otherwise, courts have the responsibility to develop the common law in response to social or technological changes,and to fine tune the law to be more just. When over-arching principles of justice are not accommodated by traditional theories of tort recovery, we do not hesitate to take measured steps to advance more just theories of tort recovery….
Burkhart v. Harrod, 110 Wash. 2d 381 at 395, 755 P.2d 759 (1998)(Utter, J., concurring), citing W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts, at 19 (5th ed. 1984).
[B]ecause judicial decision making is limited to resolving only the issues before the court in any given case, judges are limited in their abilities to obtain the input necessary to make informed decisions on issues of broad societal impact like social host liability. In this regard, we fully concur in the statement that ‘of the three branches of government, the judiciary is the least capable of receiving public input and resolving broad public policy questions based on a societal consensus.’
Id. at 385(, citing Bankston v. Brennan, 507 So. 2d 1385, 1387 (Fla. 1987).