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Should Judges Always Strictly Follow The Law Even When Confronting AnUnexpected Injustice?

Updated on July 3, 2013

There has been some attention in El Salvador in the last few weeks over an abortion case. The El Salvador Supreme Court said that a woman who needed an abortion to save her life could not have one. Not only did the mother have Lupus and kidney complications that made the abortion necessary to save her life, but the child had an undeveloped brain. The Supreme Court, however, took El Salvador’s Constitution literally, saying there is nothing that permits exceptions to the complete constitutional ban on abortion. After the Supreme Court’s ruling, the Health Minister Maria Isabel Rodriguez found an alternative: the mother could have a C-section. As a result, the woman survived while the child still died. You could argue that the C-section was the equivalent to an abortion, even though it is a routine medical procedure that normally does not result in the death of the child.

So why could the mother not have simply had an abortion? The abortion debate is endless. In a situation when both the mother and the baby are certain to die without an abortion, however, it is pretty hard to deny that having an abortion is wrong. On the other hand, El Salvador’s Supreme Court was simply interpreting the law. The real question is when should courts simply follow legal technicalities and when should they draw exceptions to the law for situations that the lawmakers likely did not consider?

Legal History Behind Judges Making The Law.

Strictly following the rule of law has long been a principle to which many judges have adhered and many people agree with that principle. British Judges started creating common law in the 9th Century. While they created law in doing this, they usually followed Roman Civil Law when contributing to the common law. Once a judge had established a new common law precedent, furthermore, future judges became bound to the precedent set.

Many times judges would find themselves enforcing injustices, simply because of legal precedent. There was nothing a judge could do, for instance, when someone had deceived an individual into deeding property to them. Over the centuries judges often enforced outdated law. Courts of Equity then came about to reverse or else partially neutralize the effects of some harsh precedents. A person who deceived someone into deeding property to them, as an example, would have to hold title to the property in constructive trust for the benefit of the person deceived. That meant they still held the property, but the person they fooled into giving them title had the beneficial use of their prior property. Such measures were one of many ways that Courts of Equity helped to modify the effects of common law.

Strictly Following The Law In The American Judiciary.

Since Courts of Equity came into existence, people have still called for judges to strictly follow the law without any modifications. In America, the concept of “strict constructionism” or “original intent” has long been a guiding force for certain judges. Many other Americans believe that judges should follow this principle. According to this principle, judges should interpret the constitution the way the founding fathers intended. Much of the time, judges should simply follow the text of the Constitution literally in interpreting it.

There are of course problems when the text may appear to contradict what certain people contend the founding fathers’ intent is. Some people advocating for original intent may contend, for instance, that when the Constitution mentions religion it really means denominations within Christianity. They would simply say that judges should follow the 18th Century common meaning of religion. That raises questions about whether these particular people advocating for original intent have their own biases in concluding what the founding fathers meant by religion. While they may have their biases and many scholars may disagree about the meaning of religion in the 18th Century, it is clear strict constructionists advocate for judges following the text of the law according to the intent of its drafters.

To elaborate, strict constructionists believe that judges should simply follow the text of the Constitution as though it were a Ouija board. Only when a piece of Constitutional text is not clear should a court look beyond the text to find the founding fathers’ intent. Strict constructionist Supreme Court Justice Antonin Scalia, for instance, says that there is no Constitutional right to vote because voting is not a right guaranteed to everyone in the Constitution.

It is often unclear, however, what our founding fathers intended. Sometimes the text is not always clear, especially when considering that the common meaning of certain words was different in the 18th Century from the way it is now. There also may be difficulties in looking outside the Constitutional text to determine what the founding fathers intended. Finally, it is even unclear as to whether our founding fathers intended justices to mostly follow the text of the Constitution. At any rate, people advocating for original intent do not believe that judges should change the law for any public policy reasons.

Robert Bork and Original Intent

Robert Bork is probably the best example of someone advocating for original intent, although some current United States Supreme Court justices such as Antonin Scalia and Clarence Thomas would say that they are for original intent. When Ronald Reagan appointed Bork to the Supreme Court in 1987, Bork found himself in a bind with the way he had employed original intent. He had criticized how the Court made its decisions in Brown v. Board of Education of Topeka Kansas, the landmark Supreme Court case ending racial segregation in education. While testifying before the Senate Judiciary Committee, Bork said that while desegregation greatly benefited society he did not see a legal justification for the Court’s reasoning. Similarly, he did not see anything in the Constitution that protected a woman’s right to an abortion.

The Senate ultimately rejected his nomination. Sen. Ted Kennedy laid out the reasons for rejecting Bork saying: “Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government..." Kennedy believed that Bork would clearly advance a political agenda.

Bork has frequently contended that he was simply following the law in expressing his opinion, that he was not out to fulfill any public policy purpose. According to Bork, that is how judges should be. He believed that the Senate wanted to extend its own political agenda to the judiciary when it rejected him.

Do strict-constructionists, including Bork, really have their own political biases in advocating for this type of interpretation of the law? Similarly, do El Salvador Supreme Court justices have their ant-abortion biases? Let’s assume that neither strict constructionists nor the El Salvador Supreme Court had any biases in interpreting the law. Are they justified in strictly adhering to the law, despite the law being outdated and completely unjust, while having no public policy benefits?

On the one hand, you can argue that it is not a judge’s duty to make the law. It is their duty to interpret the law according to who made it. If judges create new law they have a potential to dominate the other branches of government. The legislative branch would have no influence if the courts simply changed the law to the way the judges wanted it. Judge-made law of course goes against the principle of democracy. Most judges worldwide are not elected, and no federal judge in the United States is elected.

Judges Following The Law In the El Salvador Abortion Case.

In the El Salvador abortion case, for instance, it could serve as a dangerous precedent for the judges to carve out an exception to the ban on abortion when a woman’s life is at serious risk. It goes against the language of the law and the people making the law may have initially thought that there should be no exceptions. Lawmakers, however, may not always think of every possible circumstance. The thought might be abortion is wrong. It should, therefore, be illegal in all circumstances. Maybe they did not think about a mother who is certain to die without an abortion and that in such a circumstance the child would die anyway. The question becomes: what would these lawmakers have said about this case? Would they have reconsidered?

The El Salvador Supreme Court, in other words, should have considered whether the lawmakers would have permitted an abortion when it was absolutely necessary to save the life of a mother. Instead, the Court seemed to look for anything suggesting that the lawmakers intended to permit exceptions to the abortion ban, rather than would they have permitted an exception upon hearing this case. Such judicial reasoning could compensate for inadequacies in the lawmaking process. It would prevent injustice, while at the same time would keep judges as interpreters of the law and not makers of the law.

Now there would still be times when legislatures are clearly making laws that are wrong. Segregation was unjust, but yet popular with legislatures throughout the South and the people who elected them. What should a judge have done if there had been no law above the state statutes calling for segregation? Questions about what judges should do in those circumstances relate to whether we should limit democracy in any way to protect certain individuals from what Alexis De Tocqueville called “the tyranny of the majority.” Such questions are reserved for future discussions. Judges, however, would clearly have exceeded their legal authority had they intervened to end segregation without any justification within the law. Would they have exceeded their moral authority?

In the El Salvador abortion case, the judges probably would have exceeded their legal authority by permitting this abortion. They, however, would not have exceeded their moral authority. Not allowing an abortion would lead to the child and the mother’s death, rather than just the child dying.


Bork, Robert H. The Tempting of America. New York, NY: Free Press, 2009.

“El Salvador abortion Woman Has C-section,” BBC News, June 4, 2013,

“El Salvador Court Denies Seriously Ill Woman Abortion,” BBC News, May 30, 2013,

Nichols, John. “Congressmen Seek Constitutional Guarantee of the Right to Vote,” The Nation, May 13, 2013,

Roberts, Florrie Young (2008) "The Propriety of a Lis Pendens in Constructive Trust Cases," Seton Hall Law Review: Vol. 38: Iss. 1, Article 4.Available at:

Schubert, Frank A., Grilliot’s Introduction to Law and the Legal System, 6th ed. Boston, MA: Houghton Mifflin Company, 1996, 13-14. Whittington, Keith E., “The New Originalism,”


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