4 ms·

> They are also not binding precedent, so the actual state of the law at any given time can be harder to discern. This seems backwards to me. German law is sup

> They are also not binding precedent, so the actual state of the law at any given time can be harder to discern. This seems backwards to me. German law is supposed to be consistent with the constitution, so is, essentially, a logically consistent system. If you can prove a logical inconsistency with basic law, then you can win a case on that basis. That makes it more or less understandable, because the entire corpus of law follows logically from a short, comprehensible kernel. Secondly, precedent is a pretty good guideline to what will actually happen. Making precedent binding seems a bit crazy, to be honest, because if the precedent contains mistakes (which it inevitably does), then those mistakes become binding also, right? So logical inconsistency and contradiction is inevitably part of the common law system?

LeanderK 3y ago
> Making precedent binding seems a bit crazy, to be honest, because if the precedent contains mistakes (which it inevitably does), then those mistakes become binding also, right? So logical inconsistency and contradiction is inevitably part of the common law system? It is also not the correct institution to "make law" I think. It does not represent the population in some way as in a representative democracy should be. It was not debated in the parliament and it was not campaigned on. It is in some way a rule of experts.
troad 3y ago
>> This seems backwards to me. German law is supposed to be consistent with the constitution, so is, essentially, a logically consistent system. If you can prove a logical inconsistency with basic law, then you can win a case on that basis. That makes it more or less understandable, because the entire corpus of law follows logically from a short, comprehensible kernel. This is typically the case in common law systems with a written constitution as well (the US, Australia, India, etc). Laws not consistent with the constitution generally get stuck down as invalid to the extent of any inconsistency. In practice, of course, most day-to-day cases do not engage with constitutional principles in either system. If you're facing a criminal charge of larceny, and you're searching the Constitution / Basic Law for your defence, I might diplomatically call your approach... bold. >> Secondly, precedent is a pretty good guideline to what will actually happen. >> Making precedent binding seems a bit crazy, to be honest, because if the precedent contains mistakes (which it inevitably does), then those mistakes become binding also, right? So logical inconsistency and contradiction is inevitably part of the common law system? This is a great question! Precedents can and are overturned in several ways in common law systems. A higher court can overturn a lower precedent, and generally also its own previous precedents. A lower court is more restricted, but perhaps the most common way to avoid a precedent is to "distinguish" it - this means to basically claim that the two cases are not alike, and so the precedent ought not apply. (Very loosely speaking, precedent is only binding on alike cases - this is the basic theory of precedent, that the case has already, in fact, been decided before. The Latin term you often hear for this is stare decisis.) This is tricky, and higher courts will rap lower courts on the knuckles if they're not obeying precedent that binds them without good cause. But more broadly it's important to remember that precedent ("common law") is subordinate to written law ("statute law"). So if the legislature passes a law, and the judiciary interprets it in a way that the legislature doesn't like, the legislature is entirely free to amend that law to correct the court's understanding, which renders the precedent moot. The one exception is constitutional law, which might be more complicated to amend (referenda may be required), so courts have to tread carefully. (None of the above is legal advice.)
- pasabagi 3y ago
  From your description, it sounds very similar to how the German system works in practice. As I understand it (not a lawyer, married to one), a lower court will in practice basically never go against the precedent of a higher court. I think there's a sort of principle here that differs: what makes a law legitimate? One reason why I don't like the idea of common law is that it entails that tradition should carry a legal weight, above and beyond what it already always practically does. This is why people accuse Burke of 'ancestor worship' - you take ordinary, fallible people that just had the luck of living and acting in the past, then you treat their decisions as bearers of a measure of inherent authority. It might be a tolerable system if you were living in a society with a proud and morally upright history. That supposition is some of the impetus for Burke's defense of the idea of giving inherent ethical weight to tradition. I don't think any nation on earth qualifies, though.

LeanderK 3y ago

> Making precedent binding seems a bit crazy, to be honest, because if the precedent contains mistakes (which it inevitably does), then those mistakes become binding also, right? So logical inconsistency and contradiction is inevitably part of the common law system? It is also not the correct institution to "make law" I think. It does not represent the population in some way as in a representative democracy should be. It was not debated in the parliament and it was not campaigned on. It is in some way a rule of experts.

troad 3y ago

>> This seems backwards to me. German law is supposed to be consistent with the constitution, so is, essentially, a logically consistent system. If you can prove a logical inconsistency with basic law, then you can win a case on that basis. That makes it more or less understandable, because the entire corpus of law follows logically from a short, comprehensible kernel. This is typically the case in common law systems with a written constitution as well (the US, Australia, India, etc). Laws not consistent with the constitution generally get stuck down as invalid to the extent of any inconsistency. In practice, of course, most day-to-day cases do not engage with constitutional principles in either system. If you're facing a criminal charge of larceny, and you're searching the Constitution / Basic Law for your defence, I might diplomatically call your approach... bold. >> Secondly, precedent is a pretty good guideline to what will actually happen. >> Making precedent binding seems a bit crazy, to be honest, because if the precedent contains mistakes (which it inevitably does), then those mistakes become binding also, right? So logical inconsistency and contradiction is inevitably part of the common law system? This is a great question! Precedents can and are overturned in several ways in common law systems. A higher court can overturn a lower precedent, and generally also its own previous precedents. A lower court is more restricted, but perhaps the most common way to avoid a precedent is to "distinguish" it - this means to basically claim that the two cases are not alike, and so the precedent ought not apply. (Very loosely speaking, precedent is only binding on alike cases - this is the basic theory of precedent, that the case has already, in fact, been decided before. The Latin term you often hear for this is stare decisis.) This is tricky, and higher courts will rap lower courts on the knuckles if they're not obeying precedent that binds them without good cause. But more broadly it's important to remember that precedent ("common law") is subordinate to written law ("statute law"). So if the legislature passes a law, and the judiciary interprets it in a way that the legislature doesn't like, the legislature is entirely free to amend that law to correct the court's understanding, which renders the precedent moot. The one exception is constitutional law, which might be more complicated to amend (referenda may be required), so courts have to tread carefully. (None of the above is legal advice.)

pasabagi 3y ago
From your description, it sounds very similar to how the German system works in practice. As I understand it (not a lawyer, married to one), a lower court will in practice basically never go against the precedent of a higher court. I think there's a sort of principle here that differs: what makes a law legitimate? One reason why I don't like the idea of common law is that it entails that tradition should carry a legal weight, above and beyond what it already always practically does. This is why people accuse Burke of 'ancestor worship' - you take ordinary, fallible people that just had the luck of living and acting in the past, then you treat their decisions as bearers of a measure of inherent authority. It might be a tolerable system if you were living in a society with a proud and morally upright history. That supposition is some of the impetus for Burke's defense of the idea of giving inherent ethical weight to tradition. I don't think any nation on earth qualifies, though.