Courts as corruptions of government [LWN.net]

Courts as corruptions of government

Posted Mar 23, 2020 14:07 UTC (Mon) by kleptog (subscriber, #1183)
In reply to: Courts as corruptions of government by giraffedata
Parent article: Bringing encryption restrictions in through the back door

> 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.

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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.