The title is obviously a bit extreme, but should the US adopt a more civil law approach so as to strip our judges from having the ability to dictate law via court decisions? Personally, I'd rather have elected representatives having the only authority to dictate law.
Should America abandon common law in favor of civil law?
- Thread starter bhsup
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skadistic
Caomhanach
Id rather there be checks and balances. There is something nice about having judges looking out for minority that the majority in the legislative branch seems to trample over routinely.
We can offer Quebec and France as examples, then. If y'all get a civil law system, then it becomes harder to predict the law because you don't know how each judge will rule ahead of time. The common law allows the law to become more precise over time, and then occassionally corrected by Parliament. Civil law can also become more precise over time, through rewriting of the law, and I don't know how Quebec and France make that system efficient.
QuoVadisNation
keeping your angel alive
Advantages of Common Law: Allows judges to create laws in a system that sometimes is too clogged up and corrupt to accomplish anything within a reasonable amount of time (The United States federal legislature is like this)
Advantage of Common Law: Allows judges to change the laws if the law no longer reflects the accepted norms of society. And it allows judges to automatically change laws to reflect accepted norms of a society (be it New Jersey, Alabama, or South Dakota) in new cases - whereas you have to wait 50 billion years for a change in the law to start making sense in the legislature.
example: In 190X, a man from Boston was found to inherit $10,000 from his father's will. The man from Boston knew of his status in the will, and killed his father to get the money. Should he stand to inherit the money? Technically, yes. But the judges considered that to be silly to allow him to get the money, so the judges denied him his inheritance. Was what the judge did correct? If so, you agree with Common Law.
Advantage: It is a check and balance against questionable legislatures and executive branches. Let's say a new Wave of Facism or Nazism comes to America - the judicary and its Common Law can theoritcally weaken the weight and gravity of any morally questionable laws. There are a lot of arguments around that the questionable policies in Nazi Germany might never have occurred or the laws wouldn't have so bad if Germany possessed a Common Law government with pre-Nazi German judges.
Disadvantage: It makes the law unpredictable at times. Which is why Common Law Judges, for the sake of predictability in the law, stick a lot of times to something called precedent.
Disadvantage: It makes the judges usually unaccountable for their decisions. In addition, they are given an insane amount of power to check and balance. This can also be an advantage.
Disadvantage: Having a bevy of judges who all agree towards one philosophy making laws can alienate other people who do not agree with their opinion. This disadvantage is weakened however because many judges are aware people will hate them if the judges don't take everyones opinion into consideration - the fact that the Supreme Court refuses to touch the gay marriage issue is an example of this.
Make of this what you will. I for one like Common Law for the advantages I have mentioned.
Advantage of Common Law: Allows judges to change the laws if the law no longer reflects the accepted norms of society. And it allows judges to automatically change laws to reflect accepted norms of a society (be it New Jersey, Alabama, or South Dakota) in new cases - whereas you have to wait 50 billion years for a change in the law to start making sense in the legislature.
example: In 190X, a man from Boston was found to inherit $10,000 from his father's will. The man from Boston knew of his status in the will, and killed his father to get the money. Should he stand to inherit the money? Technically, yes. But the judges considered that to be silly to allow him to get the money, so the judges denied him his inheritance. Was what the judge did correct? If so, you agree with Common Law.
Advantage: It is a check and balance against questionable legislatures and executive branches. Let's say a new Wave of Facism or Nazism comes to America - the judicary and its Common Law can theoritcally weaken the weight and gravity of any morally questionable laws. There are a lot of arguments around that the questionable policies in Nazi Germany might never have occurred or the laws wouldn't have so bad if Germany possessed a Common Law government with pre-Nazi German judges.
Disadvantage: It makes the law unpredictable at times. Which is why Common Law Judges, for the sake of predictability in the law, stick a lot of times to something called precedent.
Disadvantage: It makes the judges usually unaccountable for their decisions. In addition, they are given an insane amount of power to check and balance. This can also be an advantage.
Disadvantage: Having a bevy of judges who all agree towards one philosophy making laws can alienate other people who do not agree with their opinion. This disadvantage is weakened however because many judges are aware people will hate them if the judges don't take everyones opinion into consideration - the fact that the Supreme Court refuses to touch the gay marriage issue is an example of this.
Make of this what you will. I for one like Common Law for the advantages I have mentioned.
QuoVadisNation
keeping your angel alive
Only Louisiana has a Civil Law system similar to Europe. America's "Civil Law" refers to private litigation between two or more parties within the Common Law framework. Mostly torts, contracts, intellectual property, and mostly everything else excluding criminal or administrative law.
Can't say I agree with this. That should be completely outside of their power.
Disagree with this one too. If accepted norms have changed, then get the legislature to push the changes through. If the population cannot get around to voting in people that will effect such change, then it obviously hasn't become so "accepted" as you think.
Ditto "living document" tripe vs. constitutional amendments too. The Constitution is not a living document because we can just decide to blow off parts of it as time goes by. It is living because we can amend it if we choose to. No law should pass or be accepted as constitutional just because the Consitution was written 200 years ago and some people find it lacking.
Yes, the man should have gotten the money and the legislature should move faster than hell to close the loophole in the future. In my ideal world, the judge exceeded the law and should have been kicked off the bench.
I think you put too much faith into it there. But I'll concede this one as a possible advantage.
Agreed.
I like how judges are appointed and not really subject to the whims of the public, so oddly I view this as an advantage. If only they wouldn't play God with laws...
Can't argue with this one.
Fifty
!!!!!!!!!!!!!!!!!!!!!!!!!
"America" shouldn't do anything. The states should do what they want. Shame on you, VRWC, I didn't think you'd be infected by northern big-government propaganda like this, but I guess I was wrong.
I meant it in an all-inclusive way. At the federal level I would like to see changes just as I would at the State level.
GeneralSpecific
Libertarian Capitalist
The ability of a judge to set precedent is crucial to the American system. While the Congress and the President may ignore the people, courts are forced to hear nearly all cases before them which therefore allows the people to fight against arbitrary action by government while attaining media attention. Real debates and evidence must be heard by the court and the public which cuts out most of the politics that would move the majority against the minority. Republics aim to protect all people, not just the 50 plus 1%.
Barack-for-Hope
Chieftain
We need an active judiciary to protect the rights of EVERYONE.
I think Scalia, Thomas, Roberts, Alito, and Kennedy should step down in protest if we still have the common law system in place as of February 1, 2009.
History_Buff
Deity
- Joined
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Please note that the following applies to English Common Law. Theoretical Common Law is different, but also tends to not exist.
False. Common law judges do not create law, they merely interpret it. It all stems from legislature, but since legislature cannot be written for every specific instance for obvious reason, it is up to judges to decide how the law applies to each case.
Also false. Judges cannot contradict statute law. If they did, it would simply be appealed and the decision overturned.
That more Natural Law vs. Moral Law than it is Common Law.
You've got it backwards. Common law is predictable precisely because judges are required to follow precedent. Always. The only time they can come up with a new interpretation is when they can show the current case is markedly different from the previous cases providing precedent.
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Personally, I love the idea of common law. It makes administration vastly easier. Problems can arise when judges inevitably disagree on interpretation of the law, but that's why you have a small Supreme Court that will analyse the spirit of the law and apply it. As long the majority of people have faith in the Supreme Court of their country, common law tends to work.
And if things should ever fail, the government is free to step in and correct the situation. The second that legislatures step in and contradict precedent, the statute becomes the new ruling doctrine.
False. Common law judges do not create law, they merely interpret it. It all stems from legislature, but since legislature cannot be written for every specific instance for obvious reason, it is up to judges to decide how the law applies to each case.
Also false. Judges cannot contradict statute law. If they did, it would simply be appealed and the decision overturned.
That more Natural Law vs. Moral Law than it is Common Law.
You've got it backwards. Common law is predictable precisely because judges are required to follow precedent. Always. The only time they can come up with a new interpretation is when they can show the current case is markedly different from the previous cases providing precedent.
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Personally, I love the idea of common law. It makes administration vastly easier. Problems can arise when judges inevitably disagree on interpretation of the law, but that's why you have a small Supreme Court that will analyse the spirit of the law and apply it. As long the majority of people have faith in the Supreme Court of their country, common law tends to work.
And if things should ever fail, the government is free to step in and correct the situation. The second that legislatures step in and contradict precedent, the statute becomes the new ruling doctrine.
QuoVadisNation
keeping your angel alive
Maybe it is taught differently up there in Canada. But precedents are by every means considered law. Law is a very very board term used to describe administrative, judicial, or legislative rules that are binding and enforced. I could be wrong, but I was simply applying my understanding of how Common law works in the states. I also never said judges can openly contradict the statute if the statute is not unconstitutional. But they can still undermine the statute by creating rather inventive ways of determining whether the case facts apply under a statute or to any other law. Judges can also undermine by interpreting the statute with a slant unintended by the legislature. But more importantly, in my example, I was referring more to that a judge may undermine/overrule an socially outdated precedent. If I am wrong, hey, then that's cool so long as I learn something.
But the way I see it, the need for such absolute statements about the Common Law reflects a somewhat limited understanding of just how the Common Law operates.
Fifty
!!!!!!!!!!!!!!!!!!!!!!!!!
I find it amusing that History_Buff claims to ground his explanation in terms of the Common Law as its practiced rather than "in theory", yet he is so bafflingly ignorant as to how adjudication actually happens.
Winner
Diverse in Unity
Peronally, I don't like common law because it, IMO, creates a state of uncertainty. How the hell can I trust the state to protect my rights, if every judge can interpret the legislation as he/she pleases? How can I know that I'll be treated equally to other people?
I agree that civil law is often too rigid, but I prefer it despite this disadvantage, because it tend to be more predictable.
I agree that civil law is often too rigid, but I prefer it despite this disadvantage, because it tend to be more predictable.
Forgive (and correct) me if I've got something wrong, but I was under the distinct impression that common law was much more reliable than Roman law.
The major difference is that common law is proscriptive; it forbids actions, and anything not forbidden is therefore legal. Common law relies on legislation, and a number of interpretations by judges defining, in tricky cases, whether, and how, the legislation applies.
In this way any citizen knows exactly where he stands, because the law and precedent are there for him to see.
Roman law is prescriptive and just produces bland, hopeful statements about how the country would run in a perfect world, and leaves it up to judges to interpret whether a citizen's actions have moved away from, rather than worked towards, this ideal state.
Thus Roman law is unpredictable because a new interpretation is required every time.
As it was explained to me, this gives Roman law the ability to judge each case very much on its merits, allowing 'natural morality' to reign, and making it a very reactive legal system, able to criminalise actions very rapidly.
Common law develops huge statute books and legal loopholes for the knowledgeable, but is much more definite.
The major difference is that common law is proscriptive; it forbids actions, and anything not forbidden is therefore legal. Common law relies on legislation, and a number of interpretations by judges defining, in tricky cases, whether, and how, the legislation applies.
In this way any citizen knows exactly where he stands, because the law and precedent are there for him to see.
Roman law is prescriptive and just produces bland, hopeful statements about how the country would run in a perfect world, and leaves it up to judges to interpret whether a citizen's actions have moved away from, rather than worked towards, this ideal state.
Thus Roman law is unpredictable because a new interpretation is required every time.
As it was explained to me, this gives Roman law the ability to judge each case very much on its merits, allowing 'natural morality' to reign, and making it a very reactive legal system, able to criminalise actions very rapidly.
Common law develops huge statute books and legal loopholes for the knowledgeable, but is much more definite.
Mise
isle of lucy
It's called precedent. Decisions made in the highest court (the House of Lords) must be followed by all lower courts.
If I trusted the legislature more, and if they made it regular practice to update dated laws, I would support civil law. But under the current system, I support common law.
A good example of widely supported common law is Miranda v. Arizona. The court ruled that because of the constitutional right against self incrimination, a suspect must be made aware of his criminal rights, prior to questioning. It was ruled a necessary corollary to this fundamental constitutional right. This caused a major change in police practices, officers nationwide were now required to recite the criminal rights to every suspect they arrest.
A good example of widely supported common law is Miranda v. Arizona. The court ruled that because of the constitutional right against self incrimination, a suspect must be made aware of his criminal rights, prior to questioning. It was ruled a necessary corollary to this fundamental constitutional right. This caused a major change in police practices, officers nationwide were now required to recite the criminal rights to every suspect they arrest.
History_Buff
Deity
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Yeah, I suppose it's just the interpretation of the word Law. Based on the way I was taught, law generally means statute law.
They're certainly not supposed to. Judges (here anyway) are required to follow precedent, unless they can show that the current case is fundamentally different from all preceding cases.
If similar cases have always been settled in the same way in the past, then this case needs to play by the same rules, even if the prior cases happened 150 years ago.
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