4 ms·

All of that is easy to contemplate. You have extenuating and aggravating circumstances (things that make the situation worse or better for the defendant) And o

All of that is easy to contemplate. You have extenuating and aggravating circumstances (things that make the situation worse or better for the defendant) And on top of that you have a window for sentencing. So if murder is lets say 4-20 years in jail. And you were drunk, that makes it worse, but it was not premeditated, and this and that it all adds up and you might 6 years or you might get 18 depending on the circumstances. This also allows the law to be rewritten from scratch instead of being based on whatever higher court thought in the 1800s.

denton-scratch 3y ago
> You have extenuating and aggravating circumstances You do; but that's not actually what I was thinking about. That's just about sentencing, and here (the UK) sentencing doesn't fall within the purview of precedent; there are sentencing guidelines set by senior members of the judiciary. I was thinking of actual points of law, such as what constitutes unreasonable behaviour, or whether possession of some quantity X of illegal drugs is conclusive evidence of intent to supply. > whatever higher court thought in the 1800s It's open to higher courts to overturn precedents, if they've become outdated to the extent they no longer make sense. The very old precedents are presumably precedents that make so much sense that nobody has successfully challenged them. If someone runs into an adverse judgement based on an ancient precedent that is unsupportable, no doubt there's some barrister that would like to make their case (and their reputation) at appeal, by overturning it.
- Arkhaine_kupo 3y ago
  > I was thinking of actual points of law, such as what constitutes unreasonable behaviour, or whether possession of some quantity X of illegal drugs is conclusive evidence of intent to supply. In Roman judiciary those are usually part of the law as written. So instead of having a law about "unresonable behaviour", you have a law explicitely stating that "making noise above X db at night is illegal" or "drinking in the street is illegal" etc. So the idea of what constitutes intent to supply is based on quantity, anything below X grams is personal use etc. And you can always add aggravating circumstances that "promote" a crime, so you can have such thing as intent to supply counts having drugs and X amount of money on you, or X amount of drugs and leaflets saying you sell etc. In other words you can explicitely state the kind of things judiciary precedent would probably take into account ahead of time. > The very old precedents are presumably precedents that make so much sense that nobody has successfully challenged them. Or the higher courts have not taken a case that challanges them. I am not sure about the UK but in the US, the supreme court pretty much picks their cases which means they can arguably allow for dangerous precedent to stay as long as needed by avoiding cases they know would present a resonable chance of overturning. Or equally dangerous oversee cases that maliciously try to overturn positive precedent. Also the process is slow, tedious and many times expensive. Going back to Townshed v Townshed, it is a case where a will was overturned because a man freed his slaves and his family said that was proof he was mentally unwell to change his will. This, again, is still being cited when overturning wills or when contesting changes late in life. I cannot possibly imagine a more obviously outdated precedent than a judge thinking freeing slaves means you are insane, and yet...
  - denton-scratch 3y ago
    > In Roman judiciary those are usually part of the law as written. This is increasingly the case as far as UK criminal law is concerned, I think; also to an increasing extent in matters of marriage and children. But in family law, there isn't much room for talking about precedent, because for many decades Family Court proceedings have been strictly secret. It's now opening up, slowly. Contract and property law are rooted in custom, i.e. common law; it seems to me that it would be impossible to write down a contract law that didn't have an infinite number of cracks and corner-cases. Do judiciaries that don't have precedent have to re-litigate all those corner-cases from scratch every time?

denton-scratch 3y ago

> You have extenuating and aggravating circumstances You do; but that's not actually what I was thinking about. That's just about sentencing, and here (the UK) sentencing doesn't fall within the purview of precedent; there are sentencing guidelines set by senior members of the judiciary. I was thinking of actual points of law, such as what constitutes unreasonable behaviour, or whether possession of some quantity X of illegal drugs is conclusive evidence of intent to supply. > whatever higher court thought in the 1800s It's open to higher courts to overturn precedents, if they've become outdated to the extent they no longer make sense. The very old precedents are presumably precedents that make so much sense that nobody has successfully challenged them. If someone runs into an adverse judgement based on an ancient precedent that is unsupportable, no doubt there's some barrister that would like to make their case (and their reputation) at appeal, by overturning it.

Arkhaine_kupo 3y ago
> I was thinking of actual points of law, such as what constitutes unreasonable behaviour, or whether possession of some quantity X of illegal drugs is conclusive evidence of intent to supply. In Roman judiciary those are usually part of the law as written. So instead of having a law about "unresonable behaviour", you have a law explicitely stating that "making noise above X db at night is illegal" or "drinking in the street is illegal" etc. So the idea of what constitutes intent to supply is based on quantity, anything below X grams is personal use etc. And you can always add aggravating circumstances that "promote" a crime, so you can have such thing as intent to supply counts having drugs and X amount of money on you, or X amount of drugs and leaflets saying you sell etc. In other words you can explicitely state the kind of things judiciary precedent would probably take into account ahead of time. > The very old precedents are presumably precedents that make so much sense that nobody has successfully challenged them. Or the higher courts have not taken a case that challanges them. I am not sure about the UK but in the US, the supreme court pretty much picks their cases which means they can arguably allow for dangerous precedent to stay as long as needed by avoiding cases they know would present a resonable chance of overturning. Or equally dangerous oversee cases that maliciously try to overturn positive precedent. Also the process is slow, tedious and many times expensive. Going back to Townshed v Townshed, it is a case where a will was overturned because a man freed his slaves and his family said that was proof he was mentally unwell to change his will. This, again, is still being cited when overturning wills or when contesting changes late in life. I cannot possibly imagine a more obviously outdated precedent than a judge thinking freeing slaves means you are insane, and yet...
- denton-scratch 3y ago
  > In Roman judiciary those are usually part of the law as written. This is increasingly the case as far as UK criminal law is concerned, I think; also to an increasing extent in matters of marriage and children. But in family law, there isn't much room for talking about precedent, because for many decades Family Court proceedings have been strictly secret. It's now opening up, slowly. Contract and property law are rooted in custom, i.e. common law; it seems to me that it would be impossible to write down a contract law that didn't have an infinite number of cracks and corner-cases. Do judiciaries that don't have precedent have to re-litigate all those corner-cases from scratch every time?