Courts as corruptions of government [LWN.net]

Courts as corruptions of government

Posted Mar 20, 2020 20:45 UTC (Fri) by mpr22 (subscriber, #60784)
In reply to: Courts as corruptions of government by Jandar
Parent article: Bringing encryption restrictions in through the back door

>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.

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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.