4 ms·

> opens a serious precedent Of note for US readers, France legal system is not a jurisprudential system as in the US. That is, a judge's ruling does not become

• junon 3y ago
  That's interesting. So even if the judge knows their ruling could be the worst of several options, they're boxed into doing so because it's the law?
  • starttoaster 3y ago
    Not really, that description, and the one provided by the user you responded to is a bit disingenuous. Judges have the option of going against prior rulings all the time, and they do it all the time. But it does usually require some context from the judge for why a different ruling was carried out in this instance, because if they’re basically saying the previous judge’s decision was wrong, that calls into question if that prior case actually found real justice. Additionally, only higher courts (not just small local ones) set precedents for their rulings.
  • progbits 3y ago
    Judges are not there to come up with the law, only to execute it.
    • charonn0 3y ago
      In the USA at least, it's the executive that executes laws. Judges interpret them.
    • junon 3y ago
      That's not what I asked, nor is it what I implied.
      • School-Cotton 3y ago
        It’s not clear what exactly you were asking or how it relates to the post you were replying to.
  • JW_00000 3y ago
    Isn't that always the case when you have rule of law and separation of powers? The legislative body comes up with the law; judges just apply it. E.g. if the law says "murder carries a penalty of minimum 5 years and maximum 30 years imprisonment", then a judge cannot give a sentence of 4 year or of 40 years, even if they personally believe this to be a "better" sentence.
    • lloeki 3y ago
      My understanding of the US system design is that the law as defined by the legislative body is in a way "minimalistic" (and even more so at the federal level), and jurisprudence augments it with the details. Taking your example, what constitutes murder and minimum and maximum penalty are defined in "broad strokes", and the judge gets to define "in this specific case that person is guilty in a way where they should be sentenced to X years", and that becomes law (IIUC scoped to their jurisdiction), progressively refining and tuning the whole system, because the next judge faced with a similar enough case would be bound by it. The lawyer game is then to argue whether the current case is close enough to a previous one for the previous ruling to match (and thus tying the judge's hands). A thoughtful US judge would consider both the case at hand and the implications of being law-generating when issuing a ruling.
      • sofixa 3y ago
        > My understanding of the US system design is that the law as defined by the legislative body is in a way "minimalistic" (and even more so at the federal level), and jurisprudence augments it with the details. Which really makes me wonder, how the hell to even professionals keep track of that? For regular stuff you literally can have thousands of relevant cases going back centuries as "precedent" to build on.
        • ayewo 3y ago
          There are tools like LexisNexis and FindLaw -- professional search engines to help with finding relevant case law.
      • 3y ago
  • lloeki 3y ago
    Yes. In such cases a reasonable judge ultimately aim to bring justice but can only do so within the confines of law. I recall talking to a few who had to rule in terrible ways (e.g remove a child from one's parent custody because of known but obsolete and largely unrelated past records and granting exclusive rights to the other who was known abusive but had only hearsay to back it up) and took every possible course of action to mitigate and make it less unjust but had their hands tied. They were all experiencing unfathomable psychological distress.
  • Arkhaine_kupo 3y ago
    What do you mean the worst of several options? The law is the law, if it's unfair it gets changed. Having the judge "making it up" as he goes, and then another judge using that sentence 120 years later as precedent like in american courts sounds insane
    • junon 3y ago
      What you describe does not match reality.
      • Arkhaine_kupo 3y ago
        Townshend v Townshend is a ruling from 1848 still being quoted. Citing Slavery Project did an analysis and found 18% of all current cases in courts either quote slavery rulings or are less than 2 steps removed (quote a ruling that quotes the slavery ruling).
        • junon 3y ago
          Not sure how that's relevant. > The law is the law, if it's unfair it gets changed. That's the part that doesn't match reality.
          • Arkhaine_kupo 3y ago
            > That's the part that doesn't match reality. I mean Spain recently had a big case related to a group sexual assault. Society was up in arms about the ruling (minimum sentence was 1 year, max was like 6) So the law was amended and now sexual violence has a maximum sentence of 15 years which is more in line with other european countries.
      • reddit_refugee3 3y ago
        [flagged]
    • denton-scratch 3y ago
      The law, as it's written down, often fails to match closely the particular circumstances of a specific case. Maybe it never gives an exact match. So judges and juries have to interpret the law. That's the reality, whatever legal system you have. "Precedent" is a way of saving the time of courts and lawyers, by not having to argue the same details every time they come up. And it's not as if every court judgement becomes a precedent; only higher courts can set precedents, and they can only be overturned by higher courts still. I think this is a reasonable way of approaching justice.