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Even worse, the precedent-based legal system is quite crazy itself, especially to those who lives in the continental legal system. Instead of patching "code" (l

by fuoqi 5y ago

Even worse, the precedent-based legal system is quite crazy itself, especially to those who lives in the continental legal system. Instead of patching "code" (law) to new times and sometimes removing parts of it completely, the former uses age-old execution artifacts (court decisions) to determine future execution. Not only it bloats "code" with a truck load of pattern matching branches instead of using a lean algorithm, but it also makes it much harder to consciously evolve the system, which is especially important in the current times.

visarga 5y ago
I think it's meant as a system to ensure consistency and limit the rate of change.
- whatshisface 5y ago
  Imagine a world where there was one law, "be good to each other," and the rest was judicial precedent. What would be the problems? 1. There would be no centralized repository of what the laws were. 2. Even the best interpretation of existing precedent could be wrong or overturned, making any action potentially illegal. 3. The size of the entire corpus would grow with every case and make knowing what the law was only possible for people with a lot of law clerks to research it. The complexity of definitions could grow without bound.
jquery 5y ago
It also leads to greater predictability. >The reliance on judicial opinion is a strength of common law systems, and is a significant contributor to the robust commercial systems in the United Kingdom and United States. Because there is reasonably precise guidance on almost every issue, parties (especially commercial parties) can predict whether a proposed course of action is likely to be lawful or unlawful, and have some assurance of consistency.[76] As Justice Brandeis famously expressed it, "in most matters it is more important that the applicable rule of law be settled than that it be settled right."[77] This ability to predict gives more freedom to come close to the boundaries of the law.[78] For example, many commercial contracts are more economically efficient, and create greater wealth, because the parties know ahead of time that the proposed arrangement, though perhaps close to the line, is almost certainly legal. Newspapers, taxpayer-funded entities with some religious affiliation, and political parties can obtain fairly clear guidance on the boundaries within which their freedom of expression rights apply. >In contrast, in jurisdictions with very weak respect for precedent,[79] fine questions of law are redetermined anew each time they arise, making consistency and prediction more difficult, and procedures far more protracted than necessary because parties cannot rely on written statements of law as reliable guides.[76] In jurisdictions that do not have a strong allegiance to a large body of precedent, parties have less a priori guidance (unless the written law is very clear and kept updated) and must often leave a bigger "safety margin" of unexploited opportunities, and final determinations are reached only after far larger expenditures on legal fees by the parties. https://en.wikipedia.org/wiki/Common_law https://en.wikipedia.org/wiki/Common_law
- fuoqi 5y ago
  >procedures far more protracted than necessary because parties cannot rely on written statements of law as reliable guides I would say it's a problem with laws, not the system itself. Also the continental system does not imply that precedents do not have any force. The difference is that when a law changes the system accumulates new precedents for it instead of using outdated ones.

by fuoqi 5y ago

visarga 5y ago

I think it's meant as a system to ensure consistency and limit the rate of change.

whatshisface 5y ago
Imagine a world where there was one law, "be good to each other," and the rest was judicial precedent. What would be the problems? 1. There would be no centralized repository of what the laws were. 2. Even the best interpretation of existing precedent could be wrong or overturned, making any action potentially illegal. 3. The size of the entire corpus would grow with every case and make knowing what the law was only possible for people with a lot of law clerks to research it. The complexity of definitions could grow without bound.

jquery 5y ago

It also leads to greater predictability. >The reliance on judicial opinion is a strength of common law systems, and is a significant contributor to the robust commercial systems in the United Kingdom and United States. Because there is reasonably precise guidance on almost every issue, parties (especially commercial parties) can predict whether a proposed course of action is likely to be lawful or unlawful, and have some assurance of consistency.[76] As Justice Brandeis famously expressed it, "in most matters it is more important that the applicable rule of law be settled than that it be settled right."[77] This ability to predict gives more freedom to come close to the boundaries of the law.[78] For example, many commercial contracts are more economically efficient, and create greater wealth, because the parties know ahead of time that the proposed arrangement, though perhaps close to the line, is almost certainly legal. Newspapers, taxpayer-funded entities with some religious affiliation, and political parties can obtain fairly clear guidance on the boundaries within which their freedom of expression rights apply. >In contrast, in jurisdictions with very weak respect for precedent,[79] fine questions of law are redetermined anew each time they arise, making consistency and prediction more difficult, and procedures far more protracted than necessary because parties cannot rely on written statements of law as reliable guides.[76] In jurisdictions that do not have a strong allegiance to a large body of precedent, parties have less a priori guidance (unless the written law is very clear and kept updated) and must often leave a bigger "safety margin" of unexploited opportunities, and final determinations are reached only after far larger expenditures on legal fees by the parties. https://en.wikipedia.org/wiki/Common_law https://en.wikipedia.org/wiki/Common_law

fuoqi 5y ago
>procedures far more protracted than necessary because parties cannot rely on written statements of law as reliable guides I would say it's a problem with laws, not the system itself. Also the continental system does not imply that precedents do not have any force. The difference is that when a law changes the system accumulates new precedents for it instead of using outdated ones.