2 ms·

>Laws are not black and white and courts/judges have to interpret how the law applies Kinda but not really. Jurisprudence is not the primary source of law in c

by ABCLAW 6y ago

>Laws are not black and white and courts/judges have to interpret how the law applies Kinda but not really. Jurisprudence is not the primary source of law in civilian countries; generally civil codes are. Additionally, civilian jurisdictions often treat legal scholar analysis as equally or more persuasive than previous case-law. So this portion: >New laws can be written to correct for a courts opinion, yet the courts are free to evolve what they think things mean over time. Isn't accurate. Courts are bound to apply the law, and most law presented in civil codes is far more rigid and mechanical than those found in common law jurisdictions. In the civilian tradition the proper avenue for reform isn't a judge writing a new rule in a ruling. It's a legal reform project at the legislative level, where legislators and legal scholars go over the code, eventually resulting in a new version. Are there going to be controversial cases that end up getting emergency legislative attention? Sure, but they're the exception, not the rule. That said, there are over 150 countries that operate broadly under the civil law tradition, so while what I'm saying is accurate about the tradition as a whole, there are many exceptions on a jurisdictional basis.

Xylakant 6y ago
Cicil law courts are bound to apply the law and certainly don't have the right to rewrite the law in most cases (the german constitutional court for example has the power to undo laws), but they still need to interpret the words of the law and the meaning of those words changes over time. For example the anti discrimination laws would as long as maybe 30 years ago never have encompassed discrimination for LGBTQ* people. The laws have not changes substantially, but the interpretation of those words has definitely changed and as such, rulings that were not possible then are standard now. Very often, rulings do have a law-like quality - even if strictly speaking, they are not laws. From the top of my head I can cite one example from the road laws in germany: There's a thing called "Bicylcle roads" and the legal scripture (Straßenverkehrsordnung) says that cars are required to maintain a "suitable speed." A single influential court decision pegged that to 30km/h about a decade or so ago - which has finally been fed back into the legal text this year. So while strictly speaking, no court was bound to that decision, the decision was still referenced by many other court cases and became some sort of de-facto law.
- Tainnor 6y ago
  Just a nitpick, but the constitutional court doesn't have the power to rewrite the law either. The only thing it can do is declare a certain law unconstitutional (because legally, the constitution always trumps individual laws) and then the ball is back in the court of the legislative branch which may repeal or amend the law.
  - Xylakant 6y ago
    The constitutional court can declare laws Or parts of laws as not applicable and can require laws to be made and in specific cases it’s decisions are equivalent to a law (mostly regarding disputes which law applies, state vs. federal law, where certain responsibilities lie and in cases where the constitutional court decides that a law violates the constitution and is immediately declared void.) §31 BVerGG would be the applicable paragraph. There a nice summary in English on the courts own page https://www.bundesverfassungsgericht.de/EN/Verfahren/Wichtige-Verfahrensarten/Wirkung-der-Entscheidung/wirkung-der-entscheidung_node.html https://www.bundesverfassungsgericht.de/EN/Verfahren/Wichtig... Edit: added reference to the court page.
    - mamon 6y ago
      At least in my country the law that is ruled unconstitional loses it's power immediately, unless the constitutonal court itself grants some grace period. The thing is: constitutional court can't by itself decide which laws to start analysing next, there must be some formal complaint by either the President, group of members of parliament, or several other institutions, including IIRC any complaint signed by at least 100k citizens.

by ABCLAW 6y ago

Xylakant 6y ago

Cicil law courts are bound to apply the law and certainly don't have the right to rewrite the law in most cases (the german constitutional court for example has the power to undo laws), but they still need to interpret the words of the law and the meaning of those words changes over time. For example the anti discrimination laws would as long as maybe 30 years ago never have encompassed discrimination for LGBTQ* people. The laws have not changes substantially, but the interpretation of those words has definitely changed and as such, rulings that were not possible then are standard now. Very often, rulings do have a law-like quality - even if strictly speaking, they are not laws. From the top of my head I can cite one example from the road laws in germany: There's a thing called "Bicylcle roads" and the legal scripture (Straßenverkehrsordnung) says that cars are required to maintain a "suitable speed." A single influential court decision pegged that to 30km/h about a decade or so ago - which has finally been fed back into the legal text this year. So while strictly speaking, no court was bound to that decision, the decision was still referenced by many other court cases and became some sort of de-facto law.

Tainnor 6y ago
Just a nitpick, but the constitutional court doesn't have the power to rewrite the law either. The only thing it can do is declare a certain law unconstitutional (because legally, the constitution always trumps individual laws) and then the ball is back in the court of the legislative branch which may repeal or amend the law.
- Xylakant 6y ago
  The constitutional court can declare laws Or parts of laws as not applicable and can require laws to be made and in specific cases it’s decisions are equivalent to a law (mostly regarding disputes which law applies, state vs. federal law, where certain responsibilities lie and in cases where the constitutional court decides that a law violates the constitution and is immediately declared void.) §31 BVerGG would be the applicable paragraph. There a nice summary in English on the courts own page https://www.bundesverfassungsgericht.de/EN/Verfahren/Wichtige-Verfahrensarten/Wirkung-der-Entscheidung/wirkung-der-entscheidung_node.html https://www.bundesverfassungsgericht.de/EN/Verfahren/Wichtig... Edit: added reference to the court page.
  - mamon 6y ago
    At least in my country the law that is ruled unconstitional loses it's power immediately, unless the constitutonal court itself grants some grace period. The thing is: constitutional court can't by itself decide which laws to start analysing next, there must be some formal complaint by either the President, group of members of parliament, or several other institutions, including IIRC any complaint signed by at least 100k citizens.