3 ms·
I'm not a lawyer (would love to hear a more professional take) but I think this is vaguely related to the Common Law vs Roman Law divide. The main difference is
by dguest 3y ago
I'm not a lawyer (would love to hear a more professional take) but I think this is vaguely related to the Common Law vs Roman Law divide. The main difference is how they handle ambiguity in the law:
Common (US, UK): research past cases -> argue based on precedent -> build new precedent
Roman (most of Continental Europe): research law -> argue based on law -> amend laws to avoid ambiguity
Under Roman Law precedent plays a much smaller role. This also means there's a lot less riding on any given case, since judges aren't bound to follow the decisions of past courts. What comes along with it is a need for very clean cut laws.
They accomplish mostly the same thing, with the critical difference that under common law you need ready access to past case law to have any fighting chance. Unfortunately, while technically public information, most good case law databases are behind very expensive subscription fees that only make sense if you're a lawyer.
So my take (again, not a lawyer, would love to hear how this picture is incomplete or outright wrong) is that the US legal system will remain biased against the poor until there's either:
- heavy public investment in free case law databases, or
- a shift toward a less ambiguous legal code (i.e. Roman Law) which is comprehensible to ordinary people
- stareatgoats 3y agoThe two systems may accomplish much the same thing, but over the years I've come to realize how much the divide between Common vs Roman law influences not only the respective legal frameworks but the political systems right down to things like personal, life philosophy. But the distinction is rarely discussed, and the situation across Europe is not helped by everyone thinking we must have a Common law system (since that's what we see on TV). It probably like discussing Arsenal vs Liverpool to try and compare the two systems; one tends to like the home team. But since you extoll the virtues of Roman law I have to submit: it is in my view afflicted by some variant of naïve realism [0], the notion that one can capture the many-faceted reality in script, and then apply it across board. There is very little room for interpretation regarding the circumstances: the rules rule. Which can lead to absurd situations in the extreme, i.e. the case where a bus driver was deemed to be in the right (followed the rules) when he dumped a 6-year old in the middle of no-where because he didn't have a ticket (example from Sweden). In that regard a Common law system is preferable in my view. But in all honesty, both systems are imperfect, and would probably benefit from some sort of blending. And yea - perhaps not so lawyer dependent. [0] https://en.wikipedia.org/wiki/Na%C3%AFve_realism_(psychology) https://en.wikipedia.org/wiki/Na%C3%AFve_realism_(psychology...
- dguest 3y agoNo one likes "rules are rules" as justification. But, (again, not a lawyer) you also get some equally absurd situations with the "precedent is precedent (as long as you can afford a lawyer to establish it)" situation in the US. I really don't mean to imply that one system is better than the other. My point is that they both suck in different ways, and they both need to be fixed in different ways. You treat any social system like a machine and people will get caught in the gears.
- Eddy_Viscosity2 3y agoPrecedent can be weaponized also. That's why corporations are currently given the same legal rights as 'people'. This wasn't the original intention. https://www.theatlantic.com/business/archive/2018/03/corporations-people-adam-winkler/554852/ https://www.theatlantic.com/business/archive/2018/03/corpora...