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>the object level decision sounds good, but I'm worried this went via the judges, not lawmakers. Some said the same about the US Supreme Court ending criminali

>the object level decision sounds good, but I'm worried this went via the judges, not lawmakers. Some said the same about the US Supreme Court ending criminalization of gay marriage, but no one today has a problem with it other than actual homophobes. Court decisions often limit or strike down laws, but for some reason it's always a problem when doing so increases human rights. We should welcome more rights however they are earned. Many have had to be won through blood and destruction, I am thankful whenever that isn't necessary.

eru 2y ago
> [...], but for some reason it's always a problem when doing so increases human rights. Huh, who says that? I just want, ideally, democratically elected lawmakers to make an actual law explicitly spelling out things. Because what a judge cobbles together, another judge can take away. (Yes, I know there's 'precedent' in some legal systems. But that just means that the next judge needs to come up with some reasons why her new case is sufficiently different. Not that hard.)
- toomuchtodo 2y ago
  We, most unfortunately, don’t live in this ideal world. Occasionally, we luck out and reach consistency eventually from a policy perspective, with fits and starts along the way.
  - eru 2y ago
    Yes, I know that we can't all have a pony. Though some places' lawmakers still manage to make explicit rules on cases where it matters than some other places. (Btw, I'm not even talking about what rules I agree with or not. Eg Americans really like their state-owned mail service. So in that particular area, democracy is delivering what the people want, whether I like it or not.)
  - rayiner 2y ago
    What exactly is this “ideal world,” and how could it possibly be judged as such by any standard other than reflecting whatever the democratic polity wants?
kiba 2y ago
It is difficult to codify emerging societal consensus because the founders deliberately made it difficult, so judges get around the difficulty of codifying consensus by changing their interpretation of the law, in effect creating new laws. The proper way to do this may be via constitutional amendment, perhaps regularly. But the structure of the constitution makes it difficult to do regular amendment and changes. Also, just as Judges can change their interpretation of the law for the better, they can also do the reverse. It would be better for example, if abortion rights was made more explicit or made outright a right guaranteed by the constitution.
- ravieira 2y ago
  What founders are you referring to? Do you realize this is about a legal decision in Brazil?
- eru 2y ago
  > Also, just as Judges can change their interpretation of the law for the better, they can also do the reverse. It would be better for example, if abortion rights was made more explicit or made outright a right guaranteed by the constitution. Yes, I agree about the possibility of reversal! --- At the risk of going on a tangent: There's some argument to be made that eg foreign policy is best handled at the federal level, but other things like rules on acceptable levels of noise or the schedule for garbage collection should be handled my more local authorities. It's easy to see that eg Florida has very different concerns about garbage rotting away in the hot weather compared to Alaska perhaps worrying about attracting polar bears? See https://en.wikipedia.org/wiki/Subsidiarity https://en.wikipedia.org/wiki/Subsidiarity > Subsidiarity is a principle of social organization that holds that social and political issues should be dealt with at the most immediate or local level that is consistent with their resolution. The Oxford English Dictionary defines subsidiarity as "the principle that a central authority should have a subsidiary function, performing only those tasks which cannot be performed at a more local level".[1] The concept is applicable in the fields of government, political science, neuropsychology, cybernetics, management and in military command (mission command). The OED adds that the term "subsidiarity" in English follows the early German usage of "Subsidiarität".[2] More distantly, it is derived from the Latin verb subsidio (to aid or help), and the related noun subsidium (aid or assistance). If you care about local self rule and subsidiarity at all, rules on abortion are something that should probably be handled by perhaps the counties or at most the states. Compare also how things like education, traffic rules and manslaughter are handled by the states. Curiously enough, Germany handles rules on abortion with an explicit law at the federal level, most other healthcare regulations being done at the state level. I wonder what the history there is. Perhaps it wasn't historically seen as particularly related to healthcare? In any case, I agree that an explicit rule on abortion on any level is probably better than just relying on judges. Laws can't and shouldn't handle every case explicitly, and it's good to have judges. But if you have an issues that's so politically prominent, it makes sense to give it an explicit rule.
shiroiushi 2y ago
We're talking about Brazil here, not the United States. Brazil does not use an English common law system where court decisions create precedence. To have any real power, laws in civil law countries need to come from legislation.
- eru 2y ago
  In theory, yes. In practice judges in Civil Law systems also tend to let themselves be guided by precedent. (Conversely, in Common Law precedent crumbles before a judge sufficiently motivated to find reasons why the case before her differs enough to warrant a new judgement. Often there are even multiple precedents to choose from, depending on which features of the case you want to emphasise. Identifying a precedent is like find a metaphor or analogy.)
- vitorgrs 2y ago
  You are mistaking here. Court decision can create precedence in Brazil, if is considered to be "repercussão geral". What "repercussão geral" means? That any lower courts need to follow the Supreme Court decision, basically. Full explanation in PT-BR here: https://www.mpf.mp.br/atuacao-tematica/repercussao-geral https://www.mpf.mp.br/atuacao-tematica/repercussao-geral
deleted 2y ago
[deleted]
rayiner 2y ago
It frightens me that you’re so dismissive of democracy and the rule of law. What is a “human right?” How do you ascertain what is and isn’t such a right? How does a judge decide something is a “human right” that justifies overriding democratically adopted law? To me it seems like the concept of “human rights” is like the idea that there is “divine law” that overrides man-made law, which judges discover by looking into seeing stones. It doesn’t make sense, and is really just a way of imposing a particular quasi-religious worldview onto the democratic majority.
- dctoedt 2y ago
  > really just a way of imposing a particular quasi-religious worldview onto the democratic majority. That's a fun-house mirror perspective: Nowadays, what you think of as "the democratic majority" seems to want to impose its own explicitly-religious worldview(s) onto unwilling others.
  - rayiner 2y ago
    I’m talking about the quasi-religious view that individuals have these God-given “rights” as against society, just waiting to be divined by judges (i.e. mullahs of secular humanism). The fundamental unit of democracy is the polity, not the individual. Democracy is neutral as to religion—i.e. religious motivations are no different than all the other motivations the majority may have for any particular law.
    - dctoedt 2y ago
      > The fundamental unit of democracy is the polity, not the individual. Democracy is neutral as to religion The implication being, each of us must govern our life by whatever "the polity" decides — sounds pretty authoritarian. > mullahs of secular humanism Sounds like a victimhood complex: "We religious people are being persecuted, because we have voting control of the government in [some polity] but we're not being allowed to use that control to force everyone else in that polity to live by our (untestable) metaphysical beliefs — it's not fair!" But more importantly: There are no "mullahs of secular humanism" who insist on telling everyone else how they must live. I'd wager that no secular humanist has ever told a man that he must marry another man, or (modulo the CCP's former one-child policy) a woman that she must abort her pregnancy. On the contrary, it's the (soi-disant) "Christian" versions of mullahs who insist variously that no one can marry anyone of the same sex — or use IVF or birth control — or get divorced for no fault — etc. — on the ground that each of those things is (supposedly) against God's law as they perceive it. They're the ones who insist on forcing a pregnant woman to carry her embryo or fetus to term on the ground that supposedly it's just as "human" in God's eyes as a born baby — according to their religion. So let's not talk about mullahs of secular humanism — the mullahs are on the other side of that debate.
kalleboo 2y ago
Isn't the US Supreme Court a great example of how fragile "legislating via court is"? We just had Roe v Wade revisited, whereas if it was a law introduced in congress it would have been far more difficult to remove. There was the chance all along to introduce it as a law, but "hey we have Roe vs Wade, we don't need to"
- tstrimple 2y ago
  It really wouldn’t have been. All you need is to get enough judges in the bench who will say it’s an unconstitutional law. That’s it. The US Supreme Court just decided that bribing an official is legal as long as the payment for the action happens after the favor has been granted. If you give a judge $10k to influence his opinion court that is illegal. If you give the judge a wink and pay him the $10k after he delivers his opinion, that’s just gratuity and is perfectly fine. Work hard enough and long enough and you can get enough justices vetted by a very specific organization and all sort of things are possible. https://apnews.com/article/supreme-court-public-corruption-bribery-89774f1e3cd6f1a353718b7ce3ff18a0# https://apnews.com/article/supreme-court-public-corruption-b... > The high court’s 6-3 opinion along ideological lines found the law criminalizes bribes given before an official act, not rewards handed out after. > “Some gratuities can be problematic. Others are commonplace and might be innocuous,” Justice Brett Kavanaugh wrote. The lines aren’t always clear, especially since many state and local officials have other jobs, he said. > The high court sided with James Snyder, a Republican who was convicted of taking $13,000 from a trucking company after prosecutors said he steered about $1 million worth of city contracts to the company.

eru 2y ago

> [...], but for some reason it's always a problem when doing so increases human rights. Huh, who says that? I just want, ideally, democratically elected lawmakers to make an actual law explicitly spelling out things. Because what a judge cobbles together, another judge can take away. (Yes, I know there's 'precedent' in some legal systems. But that just means that the next judge needs to come up with some reasons why her new case is sufficiently different. Not that hard.)

toomuchtodo 2y ago
We, most unfortunately, don’t live in this ideal world. Occasionally, we luck out and reach consistency eventually from a policy perspective, with fits and starts along the way.
- eru 2y ago
  Yes, I know that we can't all have a pony. Though some places' lawmakers still manage to make explicit rules on cases where it matters than some other places. (Btw, I'm not even talking about what rules I agree with or not. Eg Americans really like their state-owned mail service. So in that particular area, democracy is delivering what the people want, whether I like it or not.)
- rayiner 2y ago
  What exactly is this “ideal world,” and how could it possibly be judged as such by any standard other than reflecting whatever the democratic polity wants?

kiba 2y ago

It is difficult to codify emerging societal consensus because the founders deliberately made it difficult, so judges get around the difficulty of codifying consensus by changing their interpretation of the law, in effect creating new laws. The proper way to do this may be via constitutional amendment, perhaps regularly. But the structure of the constitution makes it difficult to do regular amendment and changes. Also, just as Judges can change their interpretation of the law for the better, they can also do the reverse. It would be better for example, if abortion rights was made more explicit or made outright a right guaranteed by the constitution.

ravieira 2y ago
What founders are you referring to? Do you realize this is about a legal decision in Brazil?
eru 2y ago
> Also, just as Judges can change their interpretation of the law for the better, they can also do the reverse. It would be better for example, if abortion rights was made more explicit or made outright a right guaranteed by the constitution. Yes, I agree about the possibility of reversal! --- At the risk of going on a tangent: There's some argument to be made that eg foreign policy is best handled at the federal level, but other things like rules on acceptable levels of noise or the schedule for garbage collection should be handled my more local authorities. It's easy to see that eg Florida has very different concerns about garbage rotting away in the hot weather compared to Alaska perhaps worrying about attracting polar bears? See https://en.wikipedia.org/wiki/Subsidiarity https://en.wikipedia.org/wiki/Subsidiarity > Subsidiarity is a principle of social organization that holds that social and political issues should be dealt with at the most immediate or local level that is consistent with their resolution. The Oxford English Dictionary defines subsidiarity as "the principle that a central authority should have a subsidiary function, performing only those tasks which cannot be performed at a more local level".[1] The concept is applicable in the fields of government, political science, neuropsychology, cybernetics, management and in military command (mission command). The OED adds that the term "subsidiarity" in English follows the early German usage of "Subsidiarität".[2] More distantly, it is derived from the Latin verb subsidio (to aid or help), and the related noun subsidium (aid or assistance). If you care about local self rule and subsidiarity at all, rules on abortion are something that should probably be handled by perhaps the counties or at most the states. Compare also how things like education, traffic rules and manslaughter are handled by the states. Curiously enough, Germany handles rules on abortion with an explicit law at the federal level, most other healthcare regulations being done at the state level. I wonder what the history there is. Perhaps it wasn't historically seen as particularly related to healthcare? In any case, I agree that an explicit rule on abortion on any level is probably better than just relying on judges. Laws can't and shouldn't handle every case explicitly, and it's good to have judges. But if you have an issues that's so politically prominent, it makes sense to give it an explicit rule.

shiroiushi 2y ago

We're talking about Brazil here, not the United States. Brazil does not use an English common law system where court decisions create precedence. To have any real power, laws in civil law countries need to come from legislation.

eru 2y ago
In theory, yes. In practice judges in Civil Law systems also tend to let themselves be guided by precedent. (Conversely, in Common Law precedent crumbles before a judge sufficiently motivated to find reasons why the case before her differs enough to warrant a new judgement. Often there are even multiple precedents to choose from, depending on which features of the case you want to emphasise. Identifying a precedent is like find a metaphor or analogy.)
vitorgrs 2y ago
You are mistaking here. Court decision can create precedence in Brazil, if is considered to be "repercussão geral". What "repercussão geral" means? That any lower courts need to follow the Supreme Court decision, basically. Full explanation in PT-BR here: https://www.mpf.mp.br/atuacao-tematica/repercussao-geral https://www.mpf.mp.br/atuacao-tematica/repercussao-geral

deleted 2y ago

[deleted]

rayiner 2y ago

It frightens me that you’re so dismissive of democracy and the rule of law. What is a “human right?” How do you ascertain what is and isn’t such a right? How does a judge decide something is a “human right” that justifies overriding democratically adopted law? To me it seems like the concept of “human rights” is like the idea that there is “divine law” that overrides man-made law, which judges discover by looking into seeing stones. It doesn’t make sense, and is really just a way of imposing a particular quasi-religious worldview onto the democratic majority.

dctoedt 2y ago
> really just a way of imposing a particular quasi-religious worldview onto the democratic majority. That's a fun-house mirror perspective: Nowadays, what you think of as "the democratic majority" seems to want to impose its own explicitly-religious worldview(s) onto unwilling others.
- rayiner 2y ago
  I’m talking about the quasi-religious view that individuals have these God-given “rights” as against society, just waiting to be divined by judges (i.e. mullahs of secular humanism). The fundamental unit of democracy is the polity, not the individual. Democracy is neutral as to religion—i.e. religious motivations are no different than all the other motivations the majority may have for any particular law.
  - dctoedt 2y ago
    > The fundamental unit of democracy is the polity, not the individual. Democracy is neutral as to religion The implication being, each of us must govern our life by whatever "the polity" decides — sounds pretty authoritarian. > mullahs of secular humanism Sounds like a victimhood complex: "We religious people are being persecuted, because we have voting control of the government in [some polity] but we're not being allowed to use that control to force everyone else in that polity to live by our (untestable) metaphysical beliefs — it's not fair!" But more importantly: There are no "mullahs of secular humanism" who insist on telling everyone else how they must live. I'd wager that no secular humanist has ever told a man that he must marry another man, or (modulo the CCP's former one-child policy) a woman that she must abort her pregnancy. On the contrary, it's the (soi-disant) "Christian" versions of mullahs who insist variously that no one can marry anyone of the same sex — or use IVF or birth control — or get divorced for no fault — etc. — on the ground that each of those things is (supposedly) against God's law as they perceive it. They're the ones who insist on forcing a pregnant woman to carry her embryo or fetus to term on the ground that supposedly it's just as "human" in God's eyes as a born baby — according to their religion. So let's not talk about mullahs of secular humanism — the mullahs are on the other side of that debate.

kalleboo 2y ago

Isn't the US Supreme Court a great example of how fragile "legislating via court is"? We just had Roe v Wade revisited, whereas if it was a law introduced in congress it would have been far more difficult to remove. There was the chance all along to introduce it as a law, but "hey we have Roe vs Wade, we don't need to"

tstrimple 2y ago
It really wouldn’t have been. All you need is to get enough judges in the bench who will say it’s an unconstitutional law. That’s it. The US Supreme Court just decided that bribing an official is legal as long as the payment for the action happens after the favor has been granted. If you give a judge $10k to influence his opinion court that is illegal. If you give the judge a wink and pay him the $10k after he delivers his opinion, that’s just gratuity and is perfectly fine. Work hard enough and long enough and you can get enough justices vetted by a very specific organization and all sort of things are possible. https://apnews.com/article/supreme-court-public-corruption-bribery-89774f1e3cd6f1a353718b7ce3ff18a0# https://apnews.com/article/supreme-court-public-corruption-b... > The high court’s 6-3 opinion along ideological lines found the law criminalizes bribes given before an official act, not rewards handed out after. > “Some gratuities can be problematic. Others are commonplace and might be innocuous,” Justice Brett Kavanaugh wrote. The lines aren’t always clear, especially since many state and local officials have other jobs, he said. > The high court sided with James Snyder, a Republican who was convicted of taking $13,000 from a trucking company after prosecutors said he steered about $1 million worth of city contracts to the company.