Courts as corruptions of government [LWN.net]

Courts as corruptions of government

Posted Mar 20, 2020 21:23 UTC (Fri) by giraffedata (guest, #1954)
In reply to: Courts as corruptions of government by Jandar
Parent article: Bringing encryption restrictions in through the back door

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.

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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.