Gaijinguy speaks out
of his ass once more. Let a simply search at Wikipedia enlighten us all:
- Quote :
- Legal formalism can be contrasted to legal instrumentalism,
a view associated with American legal realism. Instrumentalism is usually the view
that creativity in the interpretation of legal texts is justified in order
to assure that the law serves good public policy and social interests, although
legal instrumentalists could also see the end of law as the promotion of
justice or the protection of human rights. Legal formalists counter that
giving judges authority to change the law to serve their own ideas about good
policy undermines the rule of law. This tension is especially interesting
in Common Law traditions, i.e. those that, like the English,
US, Indian or Israeli systems, depend on judicial precedent to determine the
law. The "claim to fame" of Common Law systems is that the task of
developing and updating law is best done incrementally by courts that keep in
close touch with social, economic, and technological realities than by
political organs that, every so often, will attend to legal reforms. Thus legal
realism or "relationalism" has been favored in some common law
jurisdictions, where the kind of legal codification associated with continental (and Japanese) law are virtually unknown.
*puts on robes and wizard hat* And now, I present to your consideration the
following essay:
"TL;DR: A Brief History on the Common Law System and why Gaijinguy doesn't
know fuck all about it"AHEM!
PART ONE: IN WHICH COMMON LAW IS EXPLAINED TO THE SLOW KIDS IN THE BACK
Judges changing law is not a bug, but a feature in the common law system. It
must be doing something right, because it has been working since 10th century England.
Anyway, a bulk of law-making has to be done from the bench in part because
there are no proper codifications like in a civil law system. All the USA is case
law, several Constitutions, random statuary laws and custom to work with. The
only codifications available are Penal Codes, but they're not really 'required'
to have. The federal Constitution doesn't mention that the laws need to be
'written down' somewhere for them to work. It covers its ass just fine by
'protecting individual liberty' and 'fair warning'.
Crimes like 'stealing' weren't created by law or democracy, it was a crime
created in England in ye goode olde days by judges, because there were
no such things as Legislature
and democracy to begin with. Later, if the Parliament / legislature didn't like
it, they created laws to alter or create new crimes. The system was kept in
place after the 13 colonies went solo because it worked just fine. Any
potential danger was mitigated with the Constitution, again, because it covers
its ass just fine by 'protecting individual liberty' and 'fair warning'.
PART TWO: LIONS AND BEARS AND GAY MARRIAGE, OH MY!
So there are a bunch of laws out there, some for, some against gay marriage. California, for example, banned it in its Constitution, Maine struck it down. Supposedly, it was the will of the people. BUT!
The Federal Constitution is the Supreme Law of the Land. It trumps over any
local Constitution or law. As previously mentioned, it covers democracy’s ass
just fine by 'protecting individual liberty' and other liberties.
Because of the quirks of the common law and case law, ("the task of
developing and updating law is best done incrementally by courts that keep in
close touch with social, economic, and technological realities than by
political organs that, every so often, will attend to legal reforms")
these judges are perfectly free to make those interpretations. So according to
the times and judges, these liberties can be interpreted freely or
restrictively, and that interpretation is law.
In other words, Christian bigots can bitch and whine all they want, but if a
federal case gets up there and rules in favor of gay marriage, laws and bans
won't really matter in the end, because the federal Constitution and its
corresponding interpretation will always override local rules.
But the same is true in reverse. Right now, taking a case to the federal sphere
is a poor strategy for gay rights activists, because of the composition of the
court. That's why it’s better to start in a local level; if enough states
approve gay marriage, it will show the judges that the people want it and
probably rule in favor for it.
But again, thanks to the common law system, judges can rule in favor for it
right now and it will still be equally valid. It’s a matter of degree; you can
take your medicine by mouth or up your ass, but you WILL have the medicine
sooner or later.
(By the way, the civil rights movement was 'up-the-ass' all the way, much to
the butthurt of racists everywhere. Much wangsting ensured, but it was for the
best.)
(Up the ass! Hurhur!)
PART THREE: HOW CIVIL LAW JURISDICTIONS WOULD DO IT
Depending on the country and the wording of their Constitutions, they are free
to bitchslap just as well as American Justices.
But more things would be left up to the legislature. Why? Because most European countries don't have
common law. Why? Because the countries achieved political cohesion rather late
in the game. As hinted previously, England had its shit together by
the 10th century, with a king and an organized kingdom (although not as we know
it.)
Contrast it with Germany (unification in the 19th century), France (shitton of wars through the ages), Spain (unification in the 1500s, but an ex-Roman colony existing with an uneasy peace with moors until then).
Unlike England,these countries codified their laws in an effort to unify themselves. In other
words, the laws gave them unity; while in England, there was unity first,
then
law. The used Roman, that is, civil law as models.
Those countries don't have common law because common law means a long history of tradition - those
countries haven't been together that long to create such tradition. Incidentally,
USA is also a newcomer (1776), that's why it doesn't have
federal common law crimes (but do
have them on state levels, being England rebel child and all.)
Since laws in civil law countries were an artifact to create a national
identity, and not the other way around like in England, its judges are kept on a
shorter leash. The Civil Codes were created to help form that identity and
create a country out of fiefdoms, basically. To update them, the Legislature hires
university professors, best of the fields and let them write it. Judges, in
turn, read the essays by those professors and interpret the civil code maxims
according to their advice. Academics take up the bulk of developing law.
So how would they tackle gay marriage? The Legislature would create update the
Code or, if feeling lazy, create a Special Law to override that particular
article in the code, but still within the limits of their Constitution, if any.
(If it’s a country with a Constitution that has some sort of liberty stuff
built-in, it can also declare the old article unconstitutional, and it will be
equally valid. Not unlike an American Supreme Court bitchslap.)
CONCLUSION: TL;DR
Common law judges make laws since time immemorial, because of England’s
unique historical history that the USA inherited. Civil law judges
rely on the Civil Code, because of historical reasons, which include creating a
national consciousness out of random parts.
Also, Gaijinguy is a poo-poo head.
I HAVE SPOKEN!
*bangs gravel*
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