4 ms·
Does case law invent law or does it narrow or broaden the scope of how law already created can be applied and interpreted? Surely it’s the latter? Or are you su
by dvtrn 6y ago
Does case law invent law or does it narrow or broaden the scope of how law already created can be applied and interpreted? Surely it’s the latter? Or are you suggesting the difference is immaterial?
I don’t quite understand your response.
- matthewheath 6y agoI can't speak for the US but in the United Kingdom, case law can almost certainly invent law. Historically, that was how the law formed. Most law now derives from statute (in which circumstances, case law merely adjusts the scope of application and interpretation of existing law) but there are still areas where case law can still _invent_ law. Maybe the same applies in the US too.
- tialaramex 6y agoUnavoidably in the service of justice (which is their purpose) the courts will in practice make law. The legislature deals in broad hypothetical scenarios, for example perhaps "Putting anchovies on pizza shall be a crime punishable by death". Courts must deal with an actuality with lots of specific facts that could not possibly have been anticipated by the legislature. For example are these particular fish anchovies? Was this item a pizza in the sense the legislature meant? Who exactly "put" the anchovies on the pizza if it happened automatically by action of a machine? The person who installed the machine? The person who loaded these specific anchovies into a hopper? Does it matter if that person knew the machine makes pizza? It may also run into larger questions. Is the legislature really allowed to kill people for putting anchovies on their own pizza? If not, why not? Would it be allowed to fine them? All of this has the effect of "creating law" in order to dispense Justice, which is the whole reason we created courts.
- dvtrn 6y agoOkay, I get what you’re saying here, framing it the way you have this makes sense. Thanks for that.