Common law is a form of law developed in England in the middle ages, under which almost all law is made by judges. Once a precedent is set by a particular judge, that precedent then becomes legally binding on all future cases of a similar nature.
Common law was later imported to all British colonies. The rest of Europe, and much of the rest of the world, follows civil law, in which all law is issued by a higher authority in the form of law codes, and precedent is, as best, a mere guideline, to be ignored at will.
Historically, nations with common law have almost never had any lengthy periods of dictatorship, and have valued freedom of speech very highly. Statute still trumps judge-made law, of course, and any act of parliament can overturn a judicial precedent. But the overwhelming majority of laws are still judge-made.
So, my question is, why does common law seem to promote the idea of freedom? At first glance, the opposite should be true, since judges are hardly representative of the people, and certainly not in medieval England.
Common law, in its current form, was introduced by Henry II in the 12th century, who was too busy ruling his vast territories in France to have the time to issue loads of laws for England, so he let judges do it instead. Perhaps thatās the answer, simple expediency and making the best of a less than optimal situation.
Freedom of speech, of association, and so on. There doesnāt seem to be an obvious reason why common law should be better than civil law at doing so, but history suggests otherwise. Perhaps itās something to do with an independent judiciary.
Well if itās just a matter of taking legislation out of the hands of the executive ābranchā (monarchy), the same was accomplished with the legislative branch in the USA. But we also took it out of the hands of the judicial branch. I am speaking out of my depth here. We have reached the limits of my participation in this discussion. Carry on.
And now Iām triggered because everything is about who can afford to run (buy votes and what not). Stuff gets passed with āporkā and lobbying and all manner of bullshit.
I mean we have judicial precedent on how the law is interpreted, but judges canāt make laws, they can only rule on whether or not the law is correctly enforced or applied or interpreted.
If thereās no precedent then judges make law, in the USA as in all common law systems, and that precedent is legally binding. Usually, of course, thereās a precedent of some sort, and in those cases judges donāt make new law, they just interpret existing law.
Precedent just means how the law has been interpreted, applied, or enforced traditionally, historically. Sometimes they overturn precedent, but only for very, very good reasons.
As I understand it, while precedent can be overturned by statute, judges canāt actually do so. Their only recourse, if they want to, is to claim that the precedent somehow doesnāt apply to their particular case. Fudging the issue, in other words.
A good example of a precedent, in the UK, is murder. No law has ever been passed by parliament banning it, but it is still very much illegal, under common law.
The supreme court has overturned precedent, and I should be able to recall exactly what happened there, but I donāt.
Itās getting complicated when you talk about judge-made laws versus parliament-made laws/bans, and āde factoā versus āde jureā lol anyway. It rather reminds me of the difference between federal laws and state laws. It feels like judge-made laws are like state-made laws and parliament-made laws are like federal-made laws. De facto is the fact that enforcement is a whole nuther ball game. Which kind of goes back to the two-tier policing thread.
The thing judges canāt do is rule on enforcement that never happened. Cases are only brought to them if actual enforcement happens. So if there is uneven enforcement, there aināt crap you can do about it. Supposedly. Correct me if Iām wrong.
I think that higher courts, such as a supreme court, can override lower courts, but it would take an act of parliament to override the supreme court. Itās different in the UK, though, since we donāt have a written constitution.
The UK has traditionally had an independent judiciary, but recent events have called this into question, I feel. Parliament is sovereign, but conveniently for the government, parliament is on its summer holidays, so the prime minister can apparently do what he likes.
Yeah our version of parliament takes disgustingly long breaks, but over here, executive orders can happen whenever. āCourse I could be wrong about that.
Here the prime ministerās authority is derived from something called the royal prerogative. In the past, of course, the kings themselves had this power, but now they delegate it to the prime minister.