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Roe v Wade is an example of why it is silly to say the US is big on the letter above the spirit of the law. If that were true it would never have been decided t

Roe v Wade is an example of why it is silly to say the US is big on the letter above the spirit of the law. If that were true it would never have been decided the way that it was in the first place. There was no legislative gap, by the way. Nobody failed to legislate. There were bans, or not (it was legal in some, and for different reasons) at the state level. Everyone understood states to have the ability to set their own criminal law, with relative freedom. Then "substantive due process" (not in the text of the constitution) came along and a group of judges decided abortion bans weren't in the spirit of the law. The practice in civil law systems, as I understand it, is that the role of precedent is limited and statutes are more detailed and updated more frequently. In common law systems, statutes tend to be less detailed and judges fill in the gaps--so which of those sounds to you like it focuses judges on the letter of the law and which on the spirit?

lmeyerov 2y ago
I meant Roe as an example where the absence of federal law triggered a hybrid interpretive mode. Judges follow the plain meaning of the law, but when the text is missing, ambiguous, or leads to absurd results, they shift to hybrid methods by applying canons of construction and considering legislative history, purpose, and precedent. (Thank you ChatGPT ) If lawmakers want to do better, the solution is to pass clear legislation. That's not enough in the EU -- they may still use the spirit to override the literal text. RE:Letter vs spirit, the EU interpret statutes more flexibly, even if they're more detailed. In the US, judges do fill gaps (e.g. precedent), but are more rigid in applying the letter when clear. That literalism extends to precedent too. E.g., they rather pedantically follow a past interpretation rather than make a new one. That literal predictability makes it damning for US legislators refusing to legislate. If Roe was clear via federal law, then US judges either have to follow it literally or declare it unconstitutional, and there's little room inbetween. In the EU, judges can more easily go for the spirit.

lmeyerov 2y ago

I meant Roe as an example where the absence of federal law triggered a hybrid interpretive mode. Judges follow the plain meaning of the law, but when the text is missing, ambiguous, or leads to absurd results, they shift to hybrid methods by applying canons of construction and considering legislative history, purpose, and precedent. (Thank you ChatGPT ) If lawmakers want to do better, the solution is to pass clear legislation. That's not enough in the EU -- they may still use the spirit to override the literal text. RE:Letter vs spirit, the EU interpret statutes more flexibly, even if they're more detailed. In the US, judges do fill gaps (e.g. precedent), but are more rigid in applying the letter when clear. That literalism extends to precedent too. E.g., they rather pedantically follow a past interpretation rather than make a new one. That literal predictability makes it damning for US legislators refusing to legislate. If Roe was clear via federal law, then US judges either have to follow it literally or declare it unconstitutional, and there's little room inbetween. In the EU, judges can more easily go for the spirit.