Courts as corruptions of government [LWN.net]

Courts as corruptions of government

Posted Mar 20, 2020 3:08 UTC (Fri) by giraffedata (guest, #1954)
In reply to: Bringing encryption restrictions in through the back door by scientes
Parent article: Bringing encryption restrictions in through the back door

Other than weighing evidence, the only thing any court does is "write law". The court exists because people realized the legislative bodies would not be able to write a law so complete and precise that everyone would always agree on how it's supposed to apply to every case. The courts necessarily fill in those missing words.

I guess everyone's view of government is biased - different people notice and remember different court decisions. But I see courts being the savior of the common man on a regular basis. There are many powerful lobbies in the US that use the courts effectively for common people - American Civil Liberties Union, Consumers Union, National Rifle Association, American Association of Retired Persons, and countless labor unions. And, fortunately, non-wealthy people are able to pool their resources and participate in the government in corporate form.

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Courts as corruptions of government

Posted Mar 20, 2020 19:04 UTC (Fri) by Jandar (subscriber, #85683) [Link] (11 responses)

> the only thing any court does is "write law".

Only in countries with Common Law. In countries with Civil Law courts only interpret the laws given.

In my opinion Common Law is incompatible with Separation of powers because the judiciary takes part in the legislature.

Courts as corruptions of government

Posted Mar 20, 2020 20:45 UTC (Fri) by mpr22 (subscriber, #60784) [Link] (6 responses)

>In countries with Civil Law courts only interpret the laws given.

To me, that sounds like the legislature decides what the law says, and the judiciary decides what the law means, and thus from the practical perspective of a person interacting with the courts, the judiciary is involved in the legislative process, because "what the law means" is what determines whether a tort or crime will be found to have occurred.

Courts as corruptions of government

Posted Mar 21, 2020 0:37 UTC (Sat) by Jandar (subscriber, #85683) [Link] (5 responses)

In Common Law a judge creates via precedence long-lasting law whereas in Civil Law no judge is bound by a decision made by another random judge but only by the law written by the legislature. So in Common Law a single judge can shift the meaning of the law for the whole judicial system. In Civil Law a single judge can make a dubious decision but this doesn't bind the next judge.

Courts as corruptions of government

Posted Mar 21, 2020 19:21 UTC (Sat) by marcH (subscriber, #57642) [Link] (4 responses)

> So in Common Law a single judge can shift the meaning of the law for the whole judicial system. In Civil Law a single judge can make a dubious decision but this doesn't bind the next judge.

Thank you. To answer another comment "bind" => not just a "matter of degree".

By the way Civil Law judges don't ignore precedence either. However they're not bound by it and free to add a different or more nuanced opinion (cases are never exactly the same) to the whole precedence corpus.

This "first judge past the post" idea is as ridiculous as the "winner-take-all" electoral college in most US states or https://en.wikipedia.org/wiki/REDMAP gerrymandering. Loss of basic logic and common sense.

Courts as corruptions of government

Posted Mar 21, 2020 21:23 UTC (Sat) by giraffedata (guest, #1954) [Link] (3 responses)

This "first judge past the post" idea

If you're thinking of a system in which the first judge to interpret some aspect of a law sets binding precedent for every future application of that law, I don't know if that exists. I know it doesn't in the United States. In the US, a judge's decision is binding at most on the same court (which may have many judges), and often not even that. It's always binding on inferior courts, though.

[Civil law judges are] free to add a different or more nuanced opinion (cases are never exactly the same)

To the extent that cases are not exactly the same, common law judges have the same power and use it constantly. A judge finds that the instant case is different in some tiny but legally meaningful detail from a prior case, so deserves a different result. The only thing the common law judge can't do is say, "I disagree with my superior court's (or, sometimes, fellow judge's) reasoning in a prior identical case, so I'll rule differently on this one."

Courts as corruptions of government

Posted Mar 22, 2020 1:02 UTC (Sun) by Wol (subscriber, #4433) [Link] (2 responses)

> To the extent that cases are not exactly the same, common law judges have the same power and use it constantly. A judge finds that the instant case is different in some tiny but legally meaningful detail from a prior case, so deserves a different result. The only thing the common law judge can't do is say, "I disagree with my superior court's (or, sometimes, fellow judge's) reasoning in a prior identical case, so I'll rule differently on this one."

Bear in mind that "common law" is an umbrella term for assorted courts. We have the criminal courts which interpret the law as laid down by Parliament, including punishments imposed by the state.

Then we have the civil courts, which interpret the parliamentary laws controlling society.

And one of the reasons we precedence is so important is because it WASN'T until about 150 years ago. Because we had (still do to some extent) the Court of Equity, whose purpose was to define what was fair in citizens dealings with each other. Any squabble taken to law that is not defined in law is taken to a Court of Equity. And you only have to read Dickens for a perfect example of a squabble gone seriously wrong. I don't like Dickens and don't know the story, but doesn't he have a lawsuit Jarndyce vs Jarndyce? This is based on a REAL case that lasted about 100 years and, like Jarndyce, only terminated when the entire disputed fortune disappeared in legal fees.

I think it was this case that basically did in the courts of equity and led to the importance of precedence.

Cheers,
Wol

Courts as corruptions of government

Posted Mar 22, 2020 1:18 UTC (Sun) by mathstuf (subscriber, #69389) [Link]

> I don't like Dickens and don't know the story, but doesn't he have a lawsuit Jarndyce vs Jarndyce? This is based on a REAL case that lasted about 100 years and, like Jarndyce, only terminated when the entire disputed fortune disappeared in legal fees.

I was curious, so I looked it up. The real case lasted 117 years, but Bleak House (the book that has the Jarndyce case) was published only 55 years into it. Not even half way!

https://en.wikipedia.org/wiki/Jarndyce_and_Jarndyce#Real-...

Courts as corruptions of government

Posted Mar 22, 2020 17:22 UTC (Sun) by amacater (subscriber, #790) [Link]

Actually, it's a bit later in the UK - Chancery courts more or less disappear as an independent entity from 1873-1882 and the last vestiges disappear mostly in 1925 with the reform of the laws of land law, inheritance and trusts. Judge made law is still important in England and Wales in lower courts and in Scotland under a different legal system: the Supreme Court actions about Brexit were binding on all three jurisdictions because separate actions were brought in England and in Scotland.

/me used to be a trainee barrister and retains an interest in legal history and international law.

Courts as corruptions of government

Posted Mar 20, 2020 21:23 UTC (Fri) by giraffedata (guest, #1954) [Link] (3 responses)

Interpreting the law is what I meant by courts "filling in the missing words," which can be called writing law.

In both common law and civil law countries, courts only interpret law. You may be cynical and claim that a certain judge, out of corruption or incompetence has written new law instead of interpreting existing law, but that's a separate issue. That's not the system. A judge in a common law country does not say "I think everybody should provide a back door for law enforcement, so I'm going to fine you for not doing it." He says, "I think Congress has required a back door for law enforcement in this case, so I'm going to fine you for not doing it."

The difference between the role of courts in civil and common law jurisdictions is mostly a matter of degree. To me, the biggest difference between the two is that civil courts don't pay anywhere near as much attention to using the same interpretation in every case (stare decisis), which means they have a much freer hand than a common law judge in writing law. If you don't like powerful judges, a common law country is what you want.

Courts as corruptions of government

Posted Mar 23, 2020 14:07 UTC (Mon) by kleptog (subscriber, #1183) [Link] (2 responses)

> In both common law and civil law countries, courts only interpret law.

Really? How do you explain the existence of Roe vs Wade? The legality of abortion in the US is based on a ruling by the Supreme Court. Why can't Congress simply pass a new law making it legal/illegal? Or the Mabo decision in Australia, where the court basically invented a new legal framework from whole cloth. Such things are impossible in a civil law system: the legislature creates law, not the courts. If the courts make a decision that the legislature doesn't agree with, it simply passes a law to override it.

Although, to prevent the wasting of time, the courts often ask the government what to do about corner cases not considered and use that to guide the ruling. In the next revision of the law these corner cases are written in and the ruling becomes redundant.

Courts as corruptions of government

Posted Mar 23, 2020 14:48 UTC (Mon) by pizza (subscriber, #46) [Link] (1 responses)

> Really? How do you explain the existence of Roe vs Wade? The legality of abortion in the US is based on a ruling by the Supreme Court. Why can't Congress simply pass a new law making it legal/illegal?

The US Supreme Court didn't write new law with RvW; instead they ruled that the law being challeneged ran afoul of the rights laid down in the US Constitution, and was consequently unenforceable.

(Meanwhile, Congress and various States never stopped attempting to pass new laws that sidestep RvW. One's now up in front of the USSC)

Courts as corruptions of government

Posted Mar 23, 2020 15:04 UTC (Mon) by giraffedata (guest, #1954) [Link]

In other words, the court was interpreting the US Constitution, one of the sources of law in the US.

As I said before, people may reasonably disagree that this was a correct interpretation of that law and was instead new law, but the point is that if so, that's a failure of the system, not an application of it. Common law doesn't allow judges to make new law from whole cloth. At no point in the detailed written decision in Roe v Wade does the court say, "We think abortion is fine, so we nullify any law that says otherwise."

The U.S. Congress does not have the power to modify the U.S. Constitution all by itself, but it could certainly initiate an amendment and if 3/4 of the states agreed that abortion is not fine, the Supreme Court would be overruled and would start upholding criminal convictions for having abortions.

One way to have a system where the courts have less power is not to have a constitution - the legislative branch's power is unlimited. Another is to have a constitution that can be amended by a quick majority vote of the people, which many US states have. But that's not a common law vs civil law issue.