It's difference between German and British law systems [LWN.net]

It's difference between German and British law systems

Posted May 9, 2008 15:23 UTC (Fri) by rahvin (subscriber, #16953)
In reply to: It's difference between German and British law systems by AlexHudson
Parent article: The GPL wins in Germany - again

And more importantly, a system where there isn't consistency, i.e. where any Judge can make up
verdicts rather than rely on the case history to ensure that everyone petitioning the court
gets essentially the same treatment would be the opposite of Justice. The purpose of case law
is to ensure uniformity and fairness in the system with one central authority (Supreme Court)
to decide what the appropriate interpretation of the law is when different regional courts
come to different conclusions.

What you call common sense, I call favoritism or persecution. Judges routinely like to hide
their own bias under the label of "common sense". IMO the use of a Common Law system is much
more appropriate when considered in it's entirety than any other system I'm aware of.

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Here we go again

Posted May 9, 2008 17:40 UTC (Fri) by khim (subscriber, #9252) [Link]

And more importantly, a system where there isn't consistency ... would be the opposite of Justice

Quite true - that's why single cupreme court usually can overturn any and all decisions and judge can be retired if it's decisions are regularly overturned by supreme court.

What you call common sense, I call favoritism or persecution. Judges routinely like to hide their own bias under the label of "common sense".

Commow law does not protect from this - or else Texas judges were getting the same proportion of copyright lawsuits as everyone else.

Common law has positive feedback loop in the system. And while "the same treatment" looks good in theory on practice the end result is "the same incorrect treatment". A lot of strange abberations (like software patents) were created this way. This can hardly be called "height of justice". A lot of lawmakers activity in US and UK are needed to stop this process from wreaking the whole system. It works, but is this an optimal solution? I'm not so sure - the whole things looks strikingly similar to RBMK (where positive feedback is negated by external circuit) and while RMBK is more efficient then normal PWR without such feedback loop 1986 showed that it's not strictly speaking "better"...

Here we go again

Posted May 15, 2008 6:42 UTC (Thu) by lysse (subscriber, #3190) [Link]

Bear in mind that there is one crucial difference between US and UK law - which is that in the
US the Supreme Court truly *is* supreme, but in the UK, the courts are ultimately subject to
the Crown (and therefore the government of the day). In particular, an Act of Parliament can
(and on occasion, does) stomp on an undesirable precedent immediately; but the reverse is not
true - a court cannot throw out a law.

God knows I'm not defending such a system, but it does seem to clip the feedback loop you're
complaining about.

It's difference between German and British law systems

Posted May 15, 2008 10:47 UTC (Thu) by ekj (subscriber, #1524) [Link]

You forget the supreme courts. Anyone who is of the opinion that he/she was treated unfairly
can appeal to the supreme court.

Former cases of the supreme court -DOES- set precedent.

The tricky thing when every case sets precedent is that eventually some judge will make a
mistake, and the one unfairly treated lacks the resources or motivation to appeal, so the case
stands.

Whereafter -everyone- must, for consistency, be treated in that precise unfair manner.