Of the laws enacted hundreds of years ago have no relevance today, and thus, they are notĪpplied when they reach significantly high courts. Take Tort law for example (a civil claim against another) - some Modern methods of interpreting law have expanded past the wide and narrow distinctions into Hence the effect of creating primary law, from case law. Normally backwardly compatible (who said law and computers don't mix!) with prior decisions. Or Lord's dicta will introduce the legal abstraction, and then break it down, into smallerĬomponent attributes that make up a legal test or framework. When a court does make a decision that appearsĭifferent to either the common law position or statue, it will justify this position. Such things only happen in the House of Lords. Sometimes, and this is a rare event, decisions will be overruled - but Quite often, unpopular law will be limited to it's own facts by If a court can distinguish a case, it can choose Instead we have indirect effects inīritish case law, that are purely beneficial. Now I say all that, but that's not what really happens. If a court starts redefining law (as you see in ECJ law all theīloody time - ECJ decisions are not bound by precedent) it over steps its constitutional roleĪs the judicial body, becoming part legislative - this is interfering with the Government.
A ruling today should reflect the statue from The technique employed is an interesting one. This 'better law' is a positiveįeedback mechanism - it might be a diservice initially, but when a higher court rules, itsĪrgument makes up precedent and is far more authoritative (or pursuasive depending on theĬourt and make up of a sister bench) than a case-by-case interpretive approach. Pass judgement on a narrow definition and give leave to appeal to a higher court who mayĬonstrue things differently, in favour of 'better law'. Interpreting and applying the wide definition of statue/past decisions. This is quite different to the European system, where judges play a much more active role in Coupled with the principal of precedent, there is no The legality of the licence was not at stake.Ĭommon law systems that employ the British style to approaching case law follow the maxim of I think this is purely a decision on the merits of the case. It works, but is this an optimal solution? I'm not so sure - the whole things looks strikingly similar to RBMK (where positive feedback is negated by external circuit) and while RMBK is more efficient then normal PWR without such feedback loop 1986 showed that it's not strictly speaking "better". A lot of lawmakers activity in US and UK are needed to stop this process from wreaking the whole system. This can hardly be called "height of justice".
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A lot of strange abberations (like software patents) were created this way. And while "the same treatment" looks good in theory on practice the end result is "the same incorrect treatment". Judges routinely like to hide their own bias under the label of "common sense".Ĭommow law does not protect from this - or else Texas judges were getting the same proportion of copyright lawsuits as everyone else.Ĭommon law has positive feedback loop in the system.
What you call common sense, I call favoritism or persecution. Quite true - that's why single cupreme court usually can overturn any and all decisions and judge can be retired if it's decisions are regularly overturned by supreme court. Posted 17:40 UTC (Fri) by khim (subscriber, #9252)Īnd more importantly, a system where there isn't consistency.