Common law vs Code law

[WickedLou9]

So I am taking a business law course, not because I want to mind you, it's friggin required. But that's besides the point. The professor was talking about something interesting that I never really knew about.

The US operates under a "common law" system. This sort of system is really only used in the UK and in former british colonies. We inhertied it.
Most of the rest of the world operates under something called code law.

Countries like France and China operate under code law, which essentially means that the law only says exactly what it says and nothing more. IE if there is a law on the books that says you are not allowed to bring dogs on the subway, there is nothing to stop you from bringing a bear or a puma onto the subway. The law specifcally says dogs and nothing more.

The same is not true in the US. Judges can interprit the law and look at the principle behind the law, the "spirit" of the law if you will. In the US, the no dogs policy can be applied to bears easily. The Judge might say that the dogs law in on teh books becase we don't want people to bring animals that might poop on the subway or hurt another passenger etc. Since the same reasoning clearly applies to bears and pumas, the no dogs law also applies to bears.

I asked my brother, who is a lawyer, about this and he confirmed it. He said that statues always trump common law, like if there was a law that specifaclly allowed bears, then the dog law could not prevent bears on the subway, but in the absence of a specific statute, common law prevails.

This is essentially what allows justices to "legislate from the bench". Countries that have code based systems do not have that problem, however thier legal systems are also much less flexible. For instance in absence of a law that specifically permitted seeing eye dogs, the no dogs law would still apply to blind people with seeing eye dogs in a code law country.

[Linzyhop]

well now i know what the smell was on the paris subways.

[JaJae]

You're right in that common law allows us to have flexibility, but opens up to activists judges. In reality though it's the judges. In your example of applying the dog law to bears, it would seem natural I'd be ok with that. The problem comes in when an activist judge applies it to an ethnicity of people, or some other wild stretch of the law to suit THEIR political agenda. That's the biggest problem with activist judges. The minor tweaking of the understanding of a law isn't the issue. Most laws are clear enough to be understood easily. The common law system gives them an excuse to behave the way they do on the bench, but it is solely the reason for it, the judge is.

Personally I agree with much of the way our judicial and legislative system is handled compared to most other countries. One thing that needs to change is accountability for judges though. If they start going too far astray, the public should be able to easily get rid of them every few years.

[JaJae]

Originally Posted by Linzyhop

well now i know what the smell was on the paris subways.

Nah, dogs don't smell that bad. That really was their body odor.

[Linzyhop]

Originally Posted by JaJae

Nah, dogs don't smell that bad. That really was their body odor.

oh no it wasn't. believe me. it was something dead. dead, rotted, possibly crapped on and left festering....

[Linzyhop]

I took a BSL 333 class in college addressing the same stuff. It's probably one of my most useful classes I've ever taken in college. goes to show you how much the founding fathers agreed with the basic English principles of law.

[Publius]

Originally Posted by JaJae

Personally I agree with much of the way our judicial and legislative system is handled compared to most other countries. One thing that needs to change is accountability for judges though. If they start going too far astray, the public should be able to easily get rid of them every few years.

That is, in my opinion, the one truly significant error I think the Founders made in the Constitution; the court system they envisioned was such a new concept that they didn't fully understand the implications of such a system.

Judges should be removable with a 70% vote by state legislatures (35 out of 50) of no confidence in their ability to perform their judicial duties... That is a large enough number that judges wouldn't have to worry about being removed purely for political reasons, but a small enough number that it wouldn't be impossible to achieve if a judge was off their rocker.

The happy side effect would also be a reassertion of the power of state legislatures to influence national policy, a power they lost when the election of Senators was taken out of their hands.

[WickedLou9]

It's interesting , alot of "laws" that people think exist, don't exist at all. The example my brother gave me was that if your neighbors tree falls on your fence and destroys it, there is no law on the books that says you are entitled to damages, but it just makes sense. So judges have established precedant by ruling that your neighbor does have to pay, which, in essence, creates a law, but one that is not specifcally written in any law book.
So judges legislate from the bench all the time, but it's only when they do so and it disagrees with someones politcal beliefs that they get upset. It really sheds some light onto how political the whole legal process can really be.

[WickedLou9]

Originally Posted by Publius

That is, in my opinion, the one truly significant error I think the Founders made in the Constitution; the court system they envisioned was such a new concept that they didn't fully understand the implications of such a system.

Judges should be removable with a 70% vote by state legislatures (35 out of 50) of no confidence in their ability to perform their judicial duties... That is a large enough number that judges wouldn't have to worry about being removed purely for political reasons, but a small enough number that it wouldn't be impossible to achieve if a judge was off their rocker.

The happy side effect would also be a reassertion of the power of state legislatures to influence national policy, a power they lost when the election of Senators was taken out of their hands.

yeah I really have some reservations about lifetime appointments that these justices get. It's a blancing act though, because you don't want judges being fearful that if they make a ruling that offends the ruling party in a state that they might be voted off the bench. But then you get people who go rouge or whatever you want to call it that actually need to be removed and there is no way of doing it.

[Publius]

Originally Posted by WickedLou9

yeah I really have some reservations about lifetime appointments that these justices get. It's a blancing act though, because you don't want judges being fearful that if they make a ruling that offends the ruling party in a state that they might be voted off the bench. But then you get people who go rouge or whatever you want to call it that actually need to be removed and there is no way of doing it.

I like the 70% number because typically you aren't going to have 35 or more states that have the same opinion on a judge's ruling and are significantly pissed off enough at it that the legislature within that state could pass a vote of no confidence in the Justice.

Take presidential elections as a good barometer ... the last time a single candidate won 35 or more states was Bush in 1988. And when he did that he barely did so, if my count was correct he captured 39, and it would be absurd to assume that each of those states would have a state legislature majority that holds the same view on a controversial judicial ruling.

[Publius]

And if I remember correctly, most lower courts in the individual states hold public elections for court judges, so that 70% law would really only impact the Supreme Court, as they are the only court that has a Constitutional tenure of lifetime appointment.

[Rouger2]

We need that code law thing we could get rid of half the lawyers.

[WickedLou9]

Originally Posted by Rouger2

We need that code law thing we could get rid of half the lawyers.

yeah but then our legislatures would be bogged down passing specific laws about everything imaginable.

[Phantom]

Originally Posted by Rouger2

We need that code law thing we could get rid of half the lawyers.

some states have essentially abolished common law by codifying everything. This doesn't have any effect on the number of lawyers crawling around.

[SpicyMcVoodoo]

Originally Posted by JaJae

You're right in that common law allows us to have flexibility, but opens up to activists judges.

The only way a judge can be "activist" with regard to interpreting a statute is if the statute is ambiguous. If the statute is completely clear, and a judge goes against it, then he can be reversed on appeal. Judges have no freedom to simply see a law they don't like and start getting creative.

In other words, if you don't like the way judges are interpreting statutes, then you should get mad at the legislators, not the judge, for making unclear statutes. And even even if a judge properly takes advantage of an ambiguity to further his own agenda, the legislature can still override him by amending the law to correct the ambiguity and disallow his interpretation.

[SpicyMcVoodoo]

Originally Posted by WickedLou9

So judges have established precedant by ruling that your neighbor does have to pay, which, in essence, creates a law, but one that is not specifcally written in any law book.
So judges legislate from the bench all the time, but it's only when they do so and it disagrees with someones politcal beliefs that they get upset. It really sheds some light onto how political the whole legal process can really be.

I don't really think of it as political. I think of it as judges filling in gaps, which is necessary for things to run smoothly.

Judges only get to create common law when there's no statute that already speaks to the issue. Naturally, legislators can't think of every little thing that might happen and make a law, and even when they do, they can't possibly think of every little problem people will run into when interpreting it, so there has to be a temporary fix to make sure things run smoothly until the legislature addresses the issue, if ever. That's where judges come in. They fill in the blanks. And since they only have power to the extent that the legislature lets them, they don't really have that much power, with the exception of the supreme court. Hell, legislatures can ever pass laws completely disallowing courts to decide certain issues.

[JaJae]

Originally Posted by SpicyMcVoodoo

The only way a judge can be "activist" with regard to interpreting a statute is if the statute is ambiguous.

Not true. There are many rulings, even at the Supreme Court level that leave you scratching your head because they make absolutely no sense whatsoever other than the judge had a political belief and ruled based on it. And then afterwards they go "Yea well that's a messed up ruling we made, but it's precedent now so we get to keep it, hardy har har!!1!"

[SpicyMcVoodoo]

Originally Posted by JaJae

Not true. There are many rulings, even at the Supreme Court level that leave you scratching your head because they make absolutely no sense whatsoever other than the judge had a political belief and ruled based on it. And then afterwards they go "Yea well that's a messed up ruling we made, but it's precedent now so we get to keep it, hardy har har!!1!"

Examples?

And even if you disagree about whether the statute was ambiguous in the first place, erasing the judge's ruling and its power as precedent is as easy as amending the statute to expressly contradict the judge's interpretation.

By the way, something that people don't consider is that legislatures often intentionally leave statutes ambiguous. Law makers know that if they draft a law saying exactly what they want, they'll never get the law passed, so they leave it ambiguous as a political compromise. That way, they hope, judges will interpret it to their liking later or they can blame "activist judges" when things don't go their way.

I'll say it again, that judges have no power whatsoever to contradict a completely clear statute, and therefore any room for "activism" is the deliberate or unintentional result of the people that unclearly wrote the law. I challenge you to find a specific example to the contrary.

[Kytro]

I think I like code law is better, it is hard enough to know all law without having to deal with another's reasoning

[Thorgrim]

In older times, Common Law as opposed to Continental/Code Law was different because you were presumed to be guilty in non-common law countries

To this day, judges are incredibly weak in the initial trial compared to Code law...you want to see activitist judges, see how a judge takes over total control over a normal trial when in the US he/she simply handles objections

However, on appeals, common law judges are extraordinarily powerful...

I don't know where people get another idea but THE FOUNDERS WERE VERY WELL AWARE OF THIS...there is case law from the 15th century (before anyone besides native tribes were in America) that was still in effect in America that was decided by "activist judges" over 300 years later...there were CENTURIES of "activist judges" having strong appeals power that set precedent that went AGAINST statute or against common conceptions...or sometimes went against precedent

During the industrial revolution, our entire tort system was completely changed thanks to common law activist judges, and this was a huge victory for now-conservatives, then liberals

The founding fathers knew EXACTLY what they were getting into when the US adopted Common Law, it was not some "error" as much as anything not specifically spelled out in the constitution is an error (for example, senate confirmation is not DIRECTLY spelled out, I guess that's an error and we should remove it from the constitution)