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The legal philosophy is actually the opposite. Common Law is heavily based upon precedent and what the norms of the community are to “fill in the gaps”. The vas

The legal philosophy is actually the opposite. Common Law is heavily based upon precedent and what the norms of the community are to “fill in the gaps”. The vast majority of what goes into a decision is this historical case law. The actual legal text is more of a framework than exhaustive guide. Much of Europe works with civil law where everything is expected to be codified beforehand. Past cases have little bearing on how a new one will be decided.

basch 7y ago
In theory, civil law can still be technical or principled. It's a set of instructions used to make a decision. The interpreter then decides, maybe based on law maybe based on precedent, or a mix.
- beerandt 7y ago
  >>The US approach leads to more precise and consistent Technical and principled? Yes Precise? If that particular scenario has been anticipated and coded for, yes. Consistent? No
  - jdsully 7y ago
    If a case has been litigated in the past then you should get the same result if the facts are the same. It's the party with the case law on their side's responsibility to demonstrate past rulings that support them. If you spend time watching legal shows you'll see them use the word "precedent" a lot for this reason. Of course the facts being the same is the big "if". Jury verdicts are also not strictly bound to precedent the way judges are.
    - deleted 7y ago
      [deleted]
    - beerandt 7y ago
      What you're talking about is a feature of common-law. I'm talking about civil law or codified jurisdictions. The ancestor comment confused the US for being a (mostly) codified system, which is why I quoted that, but it was really about describing civil law as being "precise and consistent". In hindsight I see that it's confusing...
tormeh 7y ago
Not a lawyer, but counter-intuitively I think it ends up working the other way around. Because in civil law the law itself reigns supreme and can't be "fixed" in the courts, the law must be error-free, which is why you'd generally want to write it in a vague way with room for interpretation. In common law, interpretation is equal to the letter, so lawmakers can afford to be specific without breaking stuff.

basch 7y ago

In theory, civil law can still be technical or principled. It's a set of instructions used to make a decision. The interpreter then decides, maybe based on law maybe based on precedent, or a mix.

beerandt 7y ago
>>The US approach leads to more precise and consistent Technical and principled? Yes Precise? If that particular scenario has been anticipated and coded for, yes. Consistent? No
- jdsully 7y ago
  If a case has been litigated in the past then you should get the same result if the facts are the same. It's the party with the case law on their side's responsibility to demonstrate past rulings that support them. If you spend time watching legal shows you'll see them use the word "precedent" a lot for this reason. Of course the facts being the same is the big "if". Jury verdicts are also not strictly bound to precedent the way judges are.
  - deleted 7y ago
    [deleted]
  - beerandt 7y ago
    What you're talking about is a feature of common-law. I'm talking about civil law or codified jurisdictions. The ancestor comment confused the US for being a (mostly) codified system, which is why I quoted that, but it was really about describing civil law as being "precise and consistent". In hindsight I see that it's confusing...

tormeh 7y ago

Not a lawyer, but counter-intuitively I think it ends up working the other way around. Because in civil law the law itself reigns supreme and can't be "fixed" in the courts, the law must be error-free, which is why you'd generally want to write it in a vague way with room for interpretation. In common law, interpretation is equal to the letter, so lawmakers can afford to be specific without breaking stuff.