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German, but have not studies law: Interesting, because as a german the common law approach is equally weird. I see judges as only interpreter of law but they wi
by LeanderK 3y ago
German, but have not studies law: Interesting, because as a german the common law approach is equally weird. I see judges as only interpreter of law but they wield so much power in the common law system. In my perspective the only source where the decisions should be derived from is the law and not some precedent. Lawmakers are the representative democracy in action but judges are not, way more arbitrary. So the law is the only source of truth which we learn to read (amateurish) in school, so I feel a bit comfortable in reading it and have some idea what's going on when I talk with law-school friends.
In contrast, the respect for precedents results in a system that's not "derived from first principles". It has a certain elegance because you have a book where the law is written and you can just follow. It feels way more arbitrary and wrong to refer to some case years ago, undemocratic I would say and also inaccessible besides for the professionals who know how to find these. Not that you as an amateur should defend yourself but for small disputes you can still look at the law and ask someone more familiar to give you the right paragraphs before turning to a professional lawyer and a legal dispute.
Of course it has its own disadvantages and the laws get hugely complicated in effort to regulate everything.
Maybe because I've grown up here, but to me Common law feels "medieval" and I do not want to switch to a system where judges posses so much power. Ideally, in my POV, decisions should be almost algorithmic from a source of truth, comparable to computer code, specifying rules on how to arrive at results.
> The net effect was of a system that felt somewhat arbitrary, with broad-ranging but unexplained decisions made by relatively inexperienced people, often well outside any area with which they could reasonably be expected to be familiar. In general, there was much less legal certainty than I would be comfortable with.
Some perspective on this, since I know a judge. In germany, it is common to rotate the judges every few years to new positions (e.g. from traffic to financial cases). They get a refresher in the specific laws relevant for the area, but they also have a "group" they divide the cases with. The group also acts as professional support to each other so if there's uncertainty then there's always the colleagues.